Opinion
June 27, 1906.
John B. Holmes and Nelson Webster, for the appellant.
Samuel Foster, for the respondent.
Under subdivision 3 of section 2862 of the Code of Civil Procedure the justice of the peace, before whom the action was originally tried, had jurisdiction of an action for a fine or penalty not exceeding $200. Although the penalty under section 39 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1904, chap. 580) for killing twelve partridges amounted to upwards of $200, yet the prayer for relief was only for that amount. It is not necessary, however, in this action to determine whether the complaint as originally filed brought the case within the jurisdiction of the justice. He clearly acquired jurisdiction of the person of the defendant by the personal service of the summons upon him within his county ( Barnes v. Harris, 4 N.Y. 375), and the defendant appeared in court in pursuance of such service.
The justice also had the right to allow an amendment to the complaint (Code Civ. Proc. § 2944), and after the amendment which was made the cause of action was clearly brought within the jurisdiction of the justice, regardless of the question whether the original complaint stated a cause of action within his jurisdiction. ( Woolley v. Wilber, 4 Den. 570.) The case cited was one where the declaration stated two causes of action, in each of which damages were claimed up to the limit of the justice's jurisdiction. The objection was taken by the defendant that the justice had no jurisdiction, whereupon an amendment was allowed against his objection, bringing the amount claimed within the justice's jurisdiction, and it was held by BRONSON, Ch. J., on a writ of error, that the amendment was properly allowed.
After the amendment the justice, therefore, had jurisdiction both of the defendant and of the cause of action.
It is conceded by the respondent's counsel that in actions other than for a penalty the authorities sanctioned an amendment to bring the action within the jurisdiction of the justice when too much has been claimed in the first instance, but he claims that in actions for a penalty the principle does not apply. He does not, however, call our attention to any authority so holding; nor is it apparent why there should be any distinction between the two classes of cases.
The judgment and order of the County Court should be reversed, with costs in this court and in the County Court, and the case remitted to the County Court to proceed upon the verdict.
All concurred.
Judgment and order of the County Court reversed, with costs in this court and in the County Court, and the case remitted to the County Court to proceed upon the verdict.