a. An application to amend is addressed to the discretion of the court, and though a justice has power to allow amendments, error will not lie from a decision refusing an application to amend (White v. Stevenson, 4 Denio, 193); and see Simmis v. Brice, id. 576); or that injustice will result (Tattersall v. Hass, 1 Hilton, 56).

Amendment after demurrer, sce ante, 60, b.

b. Variance.—A recovery may be had upon a quantum meruit for work and labor proved to have been performed, although the complaint is upon a special contract only which is not put in evidence, provided the case is submitted without objection and decided apparently with the whole merits before the court (Irvine v. Wortendyke, 2 E. D. Smith, 374). And a plaintiff may recover on a complaint simply for work and labor, although it appears on the trial that a special contract existed, and that the work was done under it (Harris v. Story, id, 363). After taking time to decide, and the objection not being taken by the defendant, the justice cannot give the defendant judgment on account of the variance (Shall v. Lathrop, 3 Hill, 237). Where the defense is infancy, the plaintiff may, without replying or amending his his complaint, prove the making of a new promise by the defendant after he attained majority (Hodges v. Ilunt, 22 Barb. 150).

c. Plaintiff must prove his case.-Notwithstanding that the de fendant does not appear, the plaintiff, to entitle him to a judgment, must give prima facie evidence of his right to recover, which must in case of appeal appear by the return (Alburtis v. M'Cready, 2 E. D. Smith, 39; Howard v, Brown, id. 247; Ely v. O'Leary, id. 355; Perkins v. Stebbins, 29 Barb. 523; Raymond v. Traffarn, 12 Abb. 52; Armstrong v. Smith, 44 Barb. 123). And if, on an appeal from a judgment taken in the absence of the defendant, it appear that the evidence was not, prima facie, sufficient to support the judgment, the appellate court will reverse it (Howard v. Brown, 2 E. D. Smith, 247). Although the plaintiff cannot recover without proving his case, he need not disprove any defense that must be pleaded to be made available to the defendant (Humphrey v. Persons, 23 Barb. 314). Thus if the action is to recover for a cause of action apparently barred by the statute of limitations, the plaintiff need not show that the statute is not, in fact, a bar to his recovery (id.). But where the defendant did not deny plaintiff's claim, but merely alleged a set-off, which was not proved, held that plaintiff was entitled to judgment without proving his claim (Gregory v. Trainer, 1 Abb. 209; 4 E. D. Smith, 58). Demands contested on the pleadings, but admitted on the trial, are "proved" (Stilwell v. Staples,3 Abb. 365).

d. Taking inquest.—The justice may suspend the trial of a cause in progress before him, in order, in the absence of the defendant, to hear the plaintiff's evidence and render judgment (Beach v. M'Cann, 4 Abb. 18); but where he is induced to do this by statements which are untrue, that defendant is not intending to appear, the judgment rendered by him in favor of the plaintiff will be reversed (id.).

e. Waiver of jury.-A party who has demanded a jury may waive it (Hosford v. Carter, 10 Abb. 452). A jury may be waived by nonappearance on the adjournment day, or by failure to pay jury fees in due season (Kil patrick v. Carr, 3 Abb. 117); and by consent a cause may be tried by a jury of less than six jurors (Carman v. Newell, 1 Denio, 25).

f. Where, after a trial by a jury had been commenced and adjourned, and on the adjournment day one of the jurors could not attend by reason of sickness, the defendant refused to proceed to try before the remaining five jurors, to have a talesman called, to have a new venire returnable immediately, or to take an adjournment on terms,-held, the justice did right to proceed at the plaintiff's instance with the trial without a jury (Babcock v. Hill, 35 Barb 52).

g. Venire.-A venire should not be delivered to a constable, by a justice, until the parties have had an opportunity to object (Rice v. Buchanan, 41 Barb 147). If the venire is not returned at the time appointed, another should be issued, and the justice cannot proceed to try without a jury unless the

jury is waived (Blanchard v. Richley, 7 Johns. 198; Sebring v. Wheedon, 8 id. 460). Suppressing venire by party demanding it, held a waiver of a jury (Coon v. Snyder, 19 Johns. 384).

a. Justice a witness.—On a party making an affidavit that the justice is [1] a material and necessary witness for him, [2] the facts he expects to prove by the justice, and [3] on the justice being satisfied that he is a material witness, the action is to be discontinued (Hopkins v. Cabrey, 24 Wend. 264; B'd of Excise of Saratoga v. Doherty, 19 How. 46; Young v. Scott, 3 Hill, 32). The justice is not a necessary witness when the facts can be proved otherwise than by calling him (Murtha v. Walters, 2 Sand. 517), or if the opposite party will admit the facts sought to be proved by the justice (Van De Veer v. Stanton, 1 Cow. 81). With these exceptions, on its being shown that the judge is a material and necessary witness, he cannot refuse to dismiss the cause, on the ground "that he knows nothing material between the parties, and has no recollection of the facts the defendant alleges he expects to prove by him" (Hopkins v. Cabrey, 24 Wend. 264), or on the ground that "he can give no evidence of any thing except what appears on his minutes" (Brown v. Brown, 2 E. D. Smith, 154).

b. Objections to jury.-Any irregularity in summoning the jury is ground for challenge to the array, and must be made in the first instance, or it comes too late, and the appellate court will not interfere unless in a case where injustice has been done (Mayor of New York v. Mason, 1 Abb. 352; 4 E D. Smith, 142); and all objection to the qualification of a juror is waived unless the objection is taken on the trial (Clark v. Vranken, 20 Barb. 278).

e. A justice cannot, on his own motion, object to the panel and issue a new venire (Cross v. Moulton, 15 Johns. 469), but he may on his own motion exclude a drunken man from the jury (Bullard v. Spoor, 2 Cow. 430).

d. It is good cause of challenge to the array that the jury was summoned by a constable who appeared for either party (Watkins v. Weaver, 10 Johns. 107).

e. An alien is not qualified to serve as a juror (Borst v. Beecker, 6 Johns. 332); nor is a tenant of either party (Hathaway v. Helmer, 25 Barb. 29); nor one who has not the "property qualification" (Fenwick v. Parker, 3 Code R. 254). The fact of his qualification may be tried by examining the juror himself (Ogden v. Parks, 16 Johns. 180).

f. Examination of witnesses.-A justice has discretion in restricting a party from a frivolous or vexatious examination of a witness (Peck v. Richmond, 2 E. D. Smith, 380); and as to permitting leading questions (Seymour v. Bradfield, 35 Barb. 49); and as to the order of proof and rebutting testimony, and as to recalling a witness and reopening case (Burch v. Westfall, 5 N. Y. Leg. Obs 178; Dunckle v. Kocker, 11 Barb. 387; Breidert v. Vincent, 1 E. D. Smith, 542; Harpell v. Curtis, id. 78; Heidenheimer v. Wilson, 31 Barb. 636); and as to striking out improper answers of witnesses (Buck v. Waterbury, 13 Barb. 116); and the justice is to judge whether a witness is competent to testify as an expert, but his judgment in this respect may be reviewed (Wiggins v. Wallace, 19 Barb. 338).

9. A justice has no power to open a case for further hearing after the day of trial is passed, and the cause has been submitted by the plaintiff, and the witnesses have departed (Harden v. Woodside, 2 E. D. Smith, 37; Alburtis v. MCready, id. 39); but where, after the parties had once rested, but before the case had been finally submitted, and while the parties and their witnesses were all present, additional evidence was admitted, it was held that the admitting of such evidence rested in the discretion of the justice (Harpell v. Curtis 1 id. 78; Prikert v. Dexter, 12 Wend. 153). After motion for a nonsuit, the justice may refuse to admit any further evidence (Reed v. Barber, 3 Codé Rep. 160); but if a defendant, after a motion for a nonsuit, himself supplies the evidence on the want of which his motion was founded, he cannot afterward have a reversal upon the technical ground that such evidence was not before the court when the nonsuit was asked (Hyland v. Sherman, 2 E. D. Smith, 235).

a. Section 399 is applicable to justices' courts as a rule of evidence (Falon v. Keese, 8 How. 341; Gates v. Ward, 17 Barb. 427; Collins v. Knapp, 18 id. 532; Pelham v. Bryant, 10 How. 60).

b. Where a witness was taken sick pending his examination, and the trial was in consequence adjourned-on the adjournment day the party who had called the witness did not produce him, nor excuse his non-appearance, held that the justice could not for that reason strike out his previous testimony. (Clements v. Benjamin, 12 Johns. 299).

c. If a witness is produced and sworn before a justice, it is immaterial that a written statement prepared by him out of court is received as his testimony (Wesson v. Chamberlain, 3 N. Y. 331).

d. Nonsuit.—A justice may nonsuit the plaintiff (Clements v. Benjamin, 12 Johns. 299). But except where plaintiff does not appear to hear verdict (Douglass v. Blackman, 14 Barb. 381). not after the case has been submitted to the jury or after the cause has been submitted or the justice takes time to consider (Young v. Hubbell, 3 Johns. 430; Elwell v. McQueen 10 Wend. 520; Shall v. Lathrop, 3 Hill, 237; Hess v. Beekman, 11 Johns. 511; Young v. Rummell, 5 Hill, 60; Peters v. Diossy, 3 E. D. Smith, 115); unless by stipulation of the parties (Smith v. Compton, 20 Barb. 262).

e. Charging Jury. The justice may instruct the jury as to the law, or leave them to find a verdict without instructions. If he does not instruct them, they are judges of law and fact, if he wrongly instructs them, it is ground for reversal (Trustees of Penn Yan v. Thorne, 6 Hill, 326; Chapman v. Fuller, 7 Barb. 70; Delancy v. Nagle, 16 id. 96; Stroud v. Butler, 18 id. 327; Pettit v. Ide, 12 Abb. 44).

f. Deliberation of Jury.-By consent the jury may retire without any one to attend them (Tower v. Hewitt, 11 Johns. 134). But if any one is sworn to attend them he must be a constable (Staley v. Barhite, 2 Cai. 221); and this, too, whether the jury retire or are left in the court room to deliberate (Douglas v. Blackman, 14 Barb. 381). That the constable attending the jury acted as counsel for one of the parties, is not error, if the other party did not object (Tallman v. Woodworth, 2 Johns. 385). Error in the oath administered to the person attending the jury held ground for reversal (Day. v. Wilber, 2 Cai. 134; Herrick v. Bedford, 3 id. 140).

g. After the jury have retired, it is error for the justice, unless with the consent of the parties, to answer inquiries put by the jury (Bunn v. Croul, 10 Johns. 239; Taylor v. Betsford, 13 id. 487; Moody v. Pomeroy, 4 Denio, 115), or to give them his minutes (Neil v. Abel, 24 Wend. 185), or to enter the jury room, without answering any questions (Benson v. Clark, 1 Cow. 258; but see Thayer v. Van Vleet, 5 Johns. 111); consent to the justice entering the jury room is not implied by the parties failing to object (Moody v. Pomeroy, 4 Denio, 115, citing 13 Johns. 487; 1 Hill, 61; 7 Johns 200; 13 Wend. 274). By consent of parties, the justice after the jury have retired may re-examine a witness before them (Brown v. Cowell, 12 Johns. 384; Keeler v. Lockwood, Hill and Den. Sup. 137); read testimony to them (Hancock v. Salmon, 8 Barb. 564; Whitney v. Crim, 1 Hill, 61); and a consent that justice may enter the jury room implies a consent to read testimony (id.); so where the jury desired to examine a witness further, the defendant objected, but the justice permitted the examination, and the defendant heard all that transpired,-held no ground for reversal (Rogers v. Moulthrop, 13 Wend. 274); nor is it ground for reversal that the constable attending the jury urged them to give the verdict as it was given (Baker v. Simmons, 29 Barb. 198). But furnishing the jury with the minutes of the testimony taken by the counsel of the prevailing party, is ground for reversal (Durfee v. Eveland, 8 Barb. 46). Circulating spirituous liquors among a jury, even with consent of parties, is ground for reversal (Kellogg v. Wilder, 15 Johns. 455; Rose v. Smith, 4 Cow. 17), but not if done during a suspension of the trial (Dennison v. Collins, 1 Cow. 111).

h. Verdict.-It is error to receive a verdict if no one is present on behalf of the plaintiff. He should be called when the jury are prepared to render

their verdict, and if he does not appear a judgment of nonsuit may be entered (Douglass v. Blackman, 14 Barb. 381). If the plaintiff is present, and is called when the jury render their verdict, no one appearing and answering for him will not vitiate the judgment (McEachron v. Kandles, 34 Barb. 301); and judgment will not be reversed because the return omits to state that the plaintiff was called when the jury came into court to render their verdict (Warring v. Loomis, 4 Barb. 485). The verdict may be received on Sunday (Houghtaling v. Osborn, 15 Johns. 119). There cannot be a special verdict (Wylie v. Hyde, 13 Johns. 249). Verdict of "no cause of action" is a verdict for defendant (Felter v. Mulliner, 2 Johns. 181); and a verdict for defendant for six cents damages and six cents costs is a verdict for defendant (Goodenow v. Travis, 3 Johns. 427). A verdict for plaintiff for $10 and interest from a day specified is sufficient; the justice may compute the interest (Page v. Cady, 1 Cow. 115). A verdict for "one mill" damages is a nullity (Brown v. Smith, 3 Cai. 81). The jury may reconsider their verdict before it is entered (Blackley v. Sheldon, 7 Johns. 32). The verdict, although no judgment is entered on it, is a bar to a second action (Felter v. Mulliner, 2 Johns. 181; Young v. Overacker, id. 191; Hess v. Beekman, 11 id. 457). The jury need not find for costs; they follow of course (Brown v. Smith, 3 Cai. 81; Blake v. Millspaugh, 1 Johns. 316). On a conflict of evidence, the verdict of the jury is conclusive (McDonald v. Edgerton, 5 Barb. 560; Dunckle v. Kocker, 11 id. 387; Rogers v. Ackerman, 22 id. 134); but a verdict will be set aside that has no evidence to support it, or that is contrary to the uncontradicted testimony in the case (Rathbone v. Stanton, 6 Barb. 141; Fish v. Skut, 21 Barb. 333).

a. Damages.—Where the jury assess damages beyond the jurisdiction of the justice, or for an excessive amount, or where the party is not entitled to any, such damages or the excess may be remitted (Burger v. Kortright, 4 Johns. 414; Clark v. Denure, 3 Denio, 319; Barb r v. Rose, 5 Hill, 76; Fish v. Dodge, 4 Denio, 311; Putnam v. Shelop, 12 Johns. 455); but judgment was reversed for excessive damages (Height v. Badgeley, 15 Barb. 499).

¿. Disagreement of jury.—Where the jury do not agree, the parties may waive the provisions of law prescribing the time within which a venire for a second jury should be returnable (Fiero v. Reynolds, 20 Barb. 275).

c. Judgment.—Where the trial is before a jury, the justice should render judgment and determine the amount of costs, not later than the same day on which the verdict is rendered; otherwise he loses jurisdiction of the cause, and judgment afterwards rendered is void (Sibley v. Howard, 3 Denio, 72; Hall v. Tuttle, 6 Hill, 48; Beattie v. Qua, 15 Barb. 132); and where the trial is without a jury, the justice must render judgment within four days, or the action is discontinued (Watson v. Davis, 19 Wend. 371; Young v. Rummell, 5 Hill, 60; 7 id. 503; Wiseman v. Panama R. R. Co. 1 Hilton, 300; and see Heidenheimer v. Wilson, 31 Barb. 636; Bloomer v. Merrill, 29 How. 259); but the parties may by stipulation give the justice more than four days to render judgment (Barnes v. Badger, 41 Barb. 98). If the fourth day is a Sunday, the judgment must be rendered on the third day (Bissell v. Bissell, 11 Barb. 96). The judgment must be declared by some official act; deciding in the mind is not sufficient (Stephens v. Santee, 51 Barb. 532; Seaman v. Ward, 1 Hilton, 52); but making a memorandum on the papers is sufficient (Walrod V. Shuler, 2 N. Y. 134).

d. Judgment may be rendered on a Saturday against a seventh-day Baptist (Maxon v. Annas, 1 Denio, 204); and a judgment may be rendered on the day of a general election in a cause submitted on a previous day (Rice v. Mead, 22 How. 445; see The People v. Schwartz, 3 Abb. N. S 395); but judgment cannot be entered on a Sunday (Houghtaling v. Oborn, 15 Johns. 119).

e. A justice cannot decide a case on his own knowledge (Burlingham v. Deyer, 2 Johns. 189: Rosekrans v. Van Antwerp, 4 id. 228; Blanchard v. Richley, 7 id. 198; and see Reed v. Gillet, 12 id. 296; Locke v. Smith, 10 id. 250; Wheeler v Lampman, 14 id. 481; Green v. Angel, 13 id. 469; Sprague v. Shed, 9 id. 140; Cornell v. Moulton, 3 Denio, 12; McAllister v. Sexton, 4 E. D. Smith,

41), nor be examined as a witness unless by consent (Perry v. Weyman, 1 Johns. 520; Lawrence v. Houghton, 5 id. 129; Cobb v. Curtis, & id. 470). He cannot find the amount of damage on a mere estimate (Ely v. O'Leary, 2 E. D. Smith, 355; Fox v. Decker, 3 id. 150; and see Prentiss v. Sprague, 1 Hilton, 428).

a. The judgment should specify that it was made "on hearing the proofs and allegations" (Stocking v. Driggs, 2 Cai. 96); and if intelligible will not be vitiated by mispelling (Jackson v. Browner, 7 Wend. 388). Judgment in case of "willful trespass" for three dollars, with "treble damages," making five dollars, held good (Tifft v. Culcer, 3 Hill, 180). A judgment "for damages with costs $2.74," was affirmed on appeal (Slaman v. Buckley, 29 Barb. 289).

b. Section 136 of the Code held not to apply to justices' courts (Perkins v. Richmond, 17 How. 309). On a trial without a jury, the justice may, at the close of plaintiff's case, discharge one of several defendants, but should not enter judgment until the trial is finished (Moon v. Eldred, 3 Hill, 104; Fenn v. Timpson, 4 E. D. Smith, 276). On a suit commenced by warrant against two, if only one appears, judgment cannot be given against both (Richards v. Walton, 12 Johns. 434). Where in a suit by summons against two, one only appeared, and without authority confessed judgment against both, held binding on the other until reversed (Ingalls v. Sprague, 10 Wend. 672).

c. A judgment where the justice has jurisdiction cannot be attacked collaterally (Wesson v. Chamberlain, 3 N. Y. 331; Skinnion v. Kelly, 18 N. Y. 355; Bromley v. Smith, 2 Hill, 517; Groff v. Griswold, 1 Denio, 432). Although it be voidable for irregularities, it will uphold a judgment given upon it in a suit commenced thereon (Humphrey v. Persons, 23 Barb. 314).

d. The fact that a justice's judgment on which an action is brought was recovered more than six years before suit commenced, is no cause for reversing a judgment given upon it, where the defendant did not appear in the latter suit, and plead the statute of limitations (Humphrey v. Persons, 23 Barb. 313).

e. A judgment once entered, the power of the justice ceases; he cannot open or alter his judgment, even though it be entered by inadvertence for a wrong amount (Hardy v. Seelye, 3 Abb. 103; Scranton v. Levy, 4 id. 21; Camp v. Stewart, 2 E. D. Smith, 89; Dauchy v. Brown, 41 Barb 555; Sperry v. Major, 1 id. 361; The People v. Delaware Com. Pleas, 18 Wend. 558; McGuinty v. Herrick, 5 Wend. 240). Relief from such a judgment can only be obtained by an appeal from the judgment (Donnell v. Cornell, 1 Code Rep. N. S. 288). f. Semble. The judgment of a justice recovered since the code took effect remains in force for twenty years (Nichols v. Atwood, 16 How. 475; and see § 68, post, and note).

7. A justice's judgment is a specialty (James v Henry, 16 Johns. 233; Witherwax v. Averell, 6 Cow. 589). Parol evidence is inadmissable to contradict the docket of a justice (Smith v. Compton, 20 Barb. 262; Niles v. Totman, 3 id. 594).

h. The omission of a justice of the peace to keep his docket in the manner prescribed by law, or to deposit such docket with the clerk of the town, on his removing therefrom, will not effect the validity of the judgment (Humphrey v. Persons, 23 Barb. 313; Carshore v. Huyck, 6 Barb. 583; Baker v. Brintrall, 5 Abb. N. S. 253).

i. Costs. Every judgment to be with costs of suit, but the whole amount of the items of such costs to be included in the entry of judgment, except charges for the attendance of witnesses from another county, shall not in any case exceed $5, unless such suit has been adjourned more than once at the request and on the motion of the losing party: and in such cases the costs of such additional adjournment may be included in the entry of judgment. And in all cases in which an issue is joined and trial had and the damages recovered exceed $50, or where the plaintiff's claim in the complaint exceeded $50 and the defendant recovers judgment, the prevailing party shall be entitled to costs not exceeding $10, exclusive of witness' fees (Laws 1866, ch. 692, § 2). This law also prescribes the fees of justices, constables, jurors, and witnesses. The fees of constables were increased (2 Laws 1869, ch. 820, p. 1904).