Francis Duclos, Respondent, v. Solomon Kelly, Appellant

Francis Duclos, Respondent, v. Solomon Kelly, Appellant. (No. 2.) Third Department, November 13, 1907. Appeal — Justice’s Court—lost return. — order dismissing appeal resettled. An order dismissing an appeal from a Justice’s Court to the County Court on the ground that the justice’s return had not been filed, should be resettled to show that by the prior order the appellant had been allowed to file copies of the pleadings, the originals being lost, which were to be treated as though filed as the justice’s return, when said prior order was presented in opposition to the motion to dismiss and was considered by the court. Appeal by the defendant, Solomon Kelly, from an order of the County Court of Essex county, entered in the office of the clerk of said county on the 15th day of February, 1907, denying the defendant’s motion for a resettlement of an order dismissing his appeal from a judgment of a Justice’s Court of the town of Chesterfield. The plaintiff recovered a judgment -in Justice’s Court for $200 damages and $4.55 costs and the defendant appealed for a new trial in the County Court. When the case was moved for trial at a term commencing December 18, 1905, it was discovered that the return had been lost, and the’plaintiff moved to dismiss the appeal upon the ground that there was no return, as required by section 3053 of the Code. The motion was denied with leave to the defendant and appellant to take such steps as he might think advisable for the discovery or restoration of the record. The defendant availed himself of this privilege and made a motion for leave to file copies of the pleadings in the place and stead of the lost originals. The motion was argued and an order was made on the 17th day of March, 1906, which ordered and directed that the copy of the 'complaint and answer, attached to the petition of the defendant and appellant, and the copy of the amended complaint, attached to the affidavit of the plaintiff and respondent, '"‘be filed in Essex County Cleyk’s office, as, for and in the stead and place of the original summons, complaint and answer in the above-entitled action, forming part of the Justice’s return therein, ’and stand and be used and treated on the appeal to this court as the original pleadings in said action, in the place and stead of the lost pleadings therein, and bé treated, as though filed in said County Clerk’s office as the return made in said action by the justice of the peace before whom the original trial was had,” and it was further ordered “ that the proceedings on appeal in the above-entitled action shall proceed in all respects upon such substituted and restored record, as though the original return of the Justice of the Peace had not been lost, but had been filed in the County Clerk’s office of Essex County, by said justice before whom- the original trial was had, and required by law.” The case being upon the calendar for the term of the County Court commencing June 25, 1906, a motion was made on behalf of the respondent to dismiss the appeal, on the ground that no return had been filed as required .by section 3053 of the Code. The motion was granted and an order was entered dismissing the appeal without notice of settlement. This order did not recite or refer to the order of March seventeen or to the fact that the pleadings had been restored and the record of the- appeal supplied as required by said order. The defendant appealed to this court and thereafter made an application to the County Court to resettle the order appealed from, so as to include or specify the order of the seventeenth of March and the papers used or read on the application for that order. The application for resettlement was denied, and it is from the order denying such resettlement" that this appeal is taken.'. C. J. Vert, for the appellant. Adelbert W. Boynton, for the respondent. [MAJORITY — Sewell, J.:] Sewell, J.: It is undisputed that the order of the seventeenth of March and the papers upon which it was granted, including the exhibits filed as therein directed, were referred to upon the argument and presented to the court by the defendant’s counsel in opposition to the motion, and it appears by the affidavit of the plaintiff’s counsel, used and filed in the motion for resettlement, that upon the argument the county judge suggested to defendant’s counsel that he doubted his power to grant the order of March seventeenth. This serves to show that the order of the seventeenth of March and the exhibits filed, as and for the returns, were before the court and were considered and used on the motion to dismiss the appeal. This being so, the appellant was entitled, under rule 3 of the General Rules of Practice, to have them'recited in that order. It follows that the order should be reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements.