SPRING, J.:

An action of trespass was commenced in Justice's Court, the charge being that "during the six years prior to the commencement of this action said defendant's cattle trespassed upon lands rented and in possession of the above-named plaintiff and destroyed thereon grass, herbage and vegetables to the damage of the plaintiff in the sum of $50."

The defendant first answered orally by a general denial. He subsequently ousted the justice of jurisdiction by interposing an answer alleging the title and possession of the premises in one Edgar O'Brien, coupling the defendant therewith by the averment that he "did the alleged wrongful acts by the direction of the said "Edgar O'Brien, and by giving the undertaking required by section 2952 of the Code of Civil Procedure. No other defense was interposed and the action was discontinued. The plaintiff thereupon deposited with the justice the summons and complaint in this action.

The complaint in the new action is some what broader than the one in the Justice's Court, in that it alleges that the "defendant and his cattle" committed the trespass, and in addition to the specific destruction of the grass, adds, "and otherwise injured said premises." The complaint then specifies the land to which the trespasses relate. The defendant gave the requisite admission of service to the justice and obtained the complaint, and served an answer thereto in which the only defense is a general denial. A motion was thereupon made to strike out this answer as not conforming to the one tendered in Justice's Court, and that motion was denied.

Under the first complaint the plaintiff could prove trespasses committed upon any lands of which he claimed to be in possession under lease, so that the addition of the description of the land in the complaint in this action was no variation in substance. ( People ex rel. Proctor v. Albany C.P., 19 Wend. 123.) It was unnecessary, for within the original complaint he could show trespasses upon this identical land. The giving of the metes and bounds of the land affected narrowed the issue instead of enlarging it, and no harm could come to the defendant by the restriction.

The other addition to the complaint involves no change in substance of the cause of action. The complaint was the ordinary one of trespass, with no large damages claimed, and the real purpose, probably, was to test the rights of the parties to the possession of this land. The course pursued by the defendant upholds this supposition. Had there been any other land in controversy the defendant would have interposed a general denial, and insisted upon the trial proceeding in Justice's Court to protect himself from any danger which might ensue from proving the trespasses outside of the land to which the defendant asserted the right of possession. The complaint described no particular land, and the defendant does not limit his entry by alleging his right to any definite tract; hence, he must have been advised of the identical premises in controversy. Therefore, the fact that the plaintiff has charged that the defendant, as well as his cattle, committed the trespasses, and that the injuries were otherwise than the eating and treading down of the grass, is not material. The point of the contention is that the plaintiff charges trespass; the defendant does not deny the entry, but asserts he was on the land rightfully; whether by himself or his cattle is unimportant, so long as he challenges the possession of the plaintiff and justifies his entry. The complaint, therefore, complies with the requirement of section 2957 of the Code of Civil Procedure, that it must contain the same cause of action upon which the plaintiff relied before the justice. ( People ex rel. Proctor v. Albany C.P., supra.)

If the complaint failed in important particulars to conform to that proffered by plaintiff before the justice, the remedy of the defendant was by motion to strike it out. ( Brotherton v. Wright, 15 Wend. 237; Tuthill v. Clark, 11 id. 642; McNamara v. Biteley, 4 How. Pr. 44, 46.) He did not do that. He received it from the justice knowing, therefore, that it was deposited as a result of the discontinuance of the action in that court. He retained it and answered; all in recognition of the new action consequential upon the ending of the original one.

If the venture of the defendant meets with success, we have this state of affairs; By his plea of title he ended the action in Justice's Court; the complaint, substantially like the one first offered, was deposited with the justice and received by the defendant; his answer then is served, abandoning the plea of title which was the only excuse for the present action, and interposes a general denial, which had been withdrawn when the plea of title was tendered. By this kaleidoscopic performance the plaintiff must recover fifty dollars to obtain costs.

The answer was served July first, and this motion was made August eighteenth. This being in midsummer, when little business is done in the courts, the delay of six weeks should not be regarded as laches.

The order is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the defendant to serve the final answer served in Justice's Court within twenty days after the service of the order herein, and upon payment of said costs and disbursements.

ADAMS, P.J., and McLENNAN, J., concurred; WILLIAMS and LAUGHLIN, JJ., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the defendant to serve the final answer served in Justice's Court within twenty days after the service of the order herein, and upon payment of said costs and disbursements.