¶1The action was brought before a justice of the peace in
¶2the town of Parma, to recover the statutory penalty of $50 for the violation of the excise law. Among the defenses set up by the defendant was a counterclaim setting forth an alleged contract with the plaintiff to the effect that the plaintiff, as overseer of the poor, was, and still is, justly indebted to the defendant in the sum of $100, for moneys advanced by the defendant to the plaintiff, as overseer of the poor, on an agreement that the same was to be refunded to the defendant if at any time any action should be brought against the defendant by the plaintiff to recover a penalty for selling liquor contrary to law. By reason of this allegation in the answer, though no evidence to support the same was given before the justice of the peace, and a judgment was accordingly given against the defendant for the penalty and costs, it is claimed that the defendant is entitled to a new trial in the county court with a jury, under section 3068 of the Code of Civil Procedure, which provides that where an issue of fact or an issue of law is joined before the justice, and the sum for which judgment is demanded by either party exceeds $50, a new trial shall be had in the county court, if asked for. If the answer of the defendant before the justice of the peace was proper and serious, and not manifestly a sham, the contention of the counsel for the appellant would prevail. An improper or sham pleading before a justice of the peace cannot be made the basis of a demand for a new trial in the appellate court. It is evident that if this case had come up for trial in the county court with a jury, the evidence .attempted to be given of this pretended counter-claim would have been necessarily excluded for the reason that it does not come within section 501 of the Code of Civil Procedure. Denniston v. Trimmer, 27 Hun, 393. The county judge, knowing that this would be the inevitable result of a new trial of the •case, was not compelled to await such a denouement, but had clearly the power to order a further return by the justice, presenting all of the facts disclosed before him, so that the appeal could be determined upon questions of law alone. The order of the county court should be affirmed, with $10 costs in each case, and disbursements in one. All concur.