Opinion
June 9, 1911.
Lincoln B. Haskin, for the appellant.
Theophilus Parsons, for the respondent.
The single question for our consideration is whether, upon reversing a judgment of a justice of the peace upon the ground that the complaint was erroneously dismissed, the County Court may direct a new trial before the same justice at a time and place fixed in the order.
The plaintiff sued the defendant to recover commissions on the sale of defendant's automobile, and at the close of the evidence the defendant's motion to dismiss the complaint upon the ground that the plaintiff had failed to prove a cause of action was granted. The County Court held that this was error, reversed the judgment and directed a new trial before the same justice at a time and place fixed in the order of reversal.
The error for which the judgment of the justice was reversed was an error of law. The power of the County Court to direct a new trial upon reversal of a judgment of a justice of the peace where, as in this case, the appellant did not demand a new trial in the County Court is provided by section 3063 of the Code of Civil Procedure, and is limited to cases where the reversal is because the judgment is contrary to or against the weight of the evidence.
We agree with the learned County Court in his conclusion that the justice of the peace erred in dismissing plaintiff's complaint; that the judgment was properly reversed, but we are of the opinion that it had no authority to direct a new trial.
The order is modified by striking out its provisions directing a new trial, and as modified affirmed, without costs to either party in this court.
JENKS, P.J., THOMAS, CARR and WOODWARD, JJ., concurred.
Order of the County Court of Nassau county modified by striking out its provisions directing a new trial, and as modified affirmed, without costs to either party in this court.