SMITH, J. The failure to enter the judgment against Goodyear as well as against the Vieles seems to have been an error which was substantial. Nelson v. Bostwick, 5 Hill, 37, 41; Code Civ. Pro. § 3020. This was recognized as error by the learned county judge who directed this judgment. But he sought to avoid the same by amending the judgment so as to make it in form against Goodyear as well as against the defendants Viele. For this action of the county court we can find no authority. By section 3063 of the Code of Civil Procedure the county court has authority to affirm or reverse the judgment in whole or in part, and as to any or all of the parties. No authority, however, is anywhere conferred to modify the judg ment, or to make perfect by amendment a judgment which below was imperfect. The respondent seeks to justify the judgment of the county court upon the ground that the notice of appeal purports to have been taken by all of the defendants. EXTENT OF RELIEF ON APPEAL TO COUNTY COURT ON THE LAW,-continued. c. Modification. The county court has power to modify the judgment of a justice's court on appeal by reducing the amount according to the justice of the case without regard to technical errors. Brownell v. Winne, 29 N. Y. 400. Where a justice errs in rendering a judgment for the plaintiff for more than is claimed in the complaint, the county court may correct the judgment by conforming it to the pleadings and reduce it to the amount claimed and affirm it as to the residue. Weed v. Lee, 50 Barb. 354. Where the court below erred in allowing a plaintiff costs, after an offer of judgment had been made by the defendant, followed by a recovery not more favorable to the plaintiff than the offer, the county court should not reverse the judgment entirely, for it has power to correct the error by so modifying the judgment as to allow the defendant the costs accruing after the offer, deducting the amount from the judgment. Rowerdink v. Bitner, 72 Hun, 561; 72 St. Rep. 300; 36 Supp. 1027. Where, in arriving at a judgment for the balance claimed on sale of goods, credits were allowed, but not for two items, the amounts of which were not given, the county court has no data from which it can modify the Appellate Division. But that notice must be read in connection with the judgment from which the appeal is taken, and, inasmuch as that judgment is fairly identified by the notice of appeal, it will be deemed to have been taken simply in behalf of those against whom the judgment was entered. However, even if Goodyear had himself appealed from the judgment, it could not estop the defendants Viele from questioning the judgment which was prejudicial to them, nor, in our judgment, could it give the right to the county court to exercise an authority in amending the judgment which is not found in the statute. We see no alternative, therefore, other than to reverse the judgment of the county court and also that of the justice's court. Judgment of the county court and of the justice's court reversed, with costs in all courts. All concur. EXTENT OF RELIEF ON APPEAL TO COUNTY COURT ON THE LAW,-continued. judgment so as to give credit for such items, or send the case back for a new trial before the justice. Huested v. Bliss, 42 St. Rep. 78; 16 Supp. 644. In an action for a tort, where the damages necessarily rest in the discretion of the jury, a county court may provide that the judgment recovered by plaintiff in a justice's court shall be reversed unless he elect to reduce the damages, in which case the judgment is to be modified by such reduction, and affirmed as modified. Powers v. Hanford, 7 App. Div. 343; 39 Supp. 936. Where, in a justice's court the verdict was rendered in favor of plaintiff's assignor, who was not a party to the action, and the judgment entered thereon, and the county court on plaintiff's appeal modified the judgment by changing it from one in favor of plaintiff's assignor to one in favor of plaintiff, on appeal by defendant the supreme court affirmed the judgment of the county court on the ground that defendant was not injured in any manner by the judgment of the county court which did not in any way change the actual situation of the parties. McAleer v. Warren, 77 Hun, 589; 60 St. Rep. 181; 28 Supp. 1000. In the case last cited it was indicated that the judgment entered by the justice was in reality a judgment in favor of the plaintiff and no appeal was necessary on his part, and also that the defendant might have successfully appealed from the justice's judgment on the ground that it was unsupported by any verdict. That defect having been remedied on plain Extent of Relief on Appeal TO COUNTY COURT ON THE LAW,-continued. tiff's appeal to the county court, there was no ground for defendant to complain of the judgment. d. New relief. A county court cannot, on reversing a judgment of a justice's court in favor of plaintiff, grant new relief by awarding damages to defendant where they are not warranted either by the decision or by the evidence or by the proceedings appearing in the record on appeal. Hewitt v. Ballard, 16 App. Div. 466; 78 St. Rep. 935; 44 Supp. 935; 4 Ann. Cas. 228. Upon an appeal from a judgment of a justice of the peace the county court is confined to an affirmance or reversal of the judgment, and may not award damages to a party who has been unsuccessful in the justice's court. Ludlum v. Couch, 10 App. Div. 603; 76 St. Rep. 370; 42 Supp. 370. A county court has no power on reversal of a judgment of a justice of the peace to direct judgment for a specific sum in favor of one of the parties. Manheim v. Seitz, 21 App. Div. 16; 81 St. Rep. 282; 47 Supp. 282. e. New trial. Prior to the amendment to § 3063 of the Code of Civil Procedure which took effect September 1, 1900, the county court was without power to award a new trial, upon a reversal, except on appeal from a judgment by default under § 3064. That amendment, however, gave it such power where the judgment is contrary to or against the weight of the evidence. The cases decided prior to that amendment must be applied in view of the change effected by it. Upon an appeal from a justice's court, where no new trial is demanded In the appellate court, the county court is limited to an athirmance or reversal of the judgment of the justice in whole or in part, and has no power to grant a new trial in the justice's court except in cases where the defendant fails to appear in the lower court. Platz v. Burton & Cory Cider & Vinegar Co. 7 Misc. 473; 28 Supp. 385. A new trial may not be granted by the county court, on an appeal from a justice's court, on the ground that the defendant failed to appear before the justice at the time to which the trial of the action had been adjourned, where it appears that both the defendant and his attorney were present in the justice's court on the adjourned day, and that they remained there until the case was called, and during the trial thereof, but the attorney refused to answer on behalf of the defendant when the case was called, and declined to take any part in the trial on the ground that it was called too late. Thomas v. Keeler, 52 Hun, 318; 23 St. Rep. 436; Supp. 359; 16 Civ. Pro. 408. EXTENT OF RELIEF ON APPEAL TO COUNTY COURT ON THE LAW,-continued. The power of the county court of Monroe County to entertain a motion to set aside a judgment of the Municipal Court of the city of Rochester, entered upon the plaintiff's default, from which an appeal has been taken, was not derived solely from section 257 of the charter of the city of Rochester, in force previous to the present charter of cities of the second class, which provided that the motion must be made within twenty days after the entry of judgment in the Municipal Court, but is also conferred by section 3064 of the Code of Civil Procedure, which is made applicable to the Municipal Court of the city of Rochester by section 3226 of that code, and which does not prescribe such a limit. Albertson v. Behrend Manufacturing Co., 47 App. Div. 232; 96 St. Rep. 640; 62 Supp. 640. The county court cannot grant an order opening a default and vacating the judgment on a motion made before a return has been made by the justice. Kellock v. Dickinson, 5 App. Div. 515; 39 Supp. 38. 1. Manifest injustice. The county court cannot set aside a judgment taken by default in a justice's court and grant a new trial on the ground that manifest injustice was done, where such injustice in shown only by an affidavit stating that the judgment is larger in amount than it ought to have been. Bates v. Gorman, 8 Civ. Pro. 180. A judgment of a justice's court taken by default will not be set aside and a new trial granted by the county court on appeal upon the ground that manifest injustice has been done, where it does not appear what the defense is or that defendant has any. Young v. Conklin, 3 Misc. 122; 23 Supp. 993. 2. Satisfactory excuse. A county court on appeal cannot direct a new trial of an action decided in a justice's court in favor of plaintiff on defendant's default, unless defendant renders a satisfactory excuse for his default. De Bevoise v. Ingalls, 88 Hun, 186; 68 St. Rep. 423; 34 Supp. 413. The fact that defendant on the return day of a summons asked the justice to wait until she could obtain a lawyer or adjourn the hearing, and, when she could not find an attorney after diligent search, the justice lowed the plaintiff to take judgment by default, is a satisfactory excuse. McCarthy v. Crowley, 1 Silv. S. Ct. 364; 24 St. Rep. 815; 5 Supp. 675. An affidavit stating that defendant forgot the time the summons was returnable, and setting forth that he was in charge of a large number of men and with them was engaged in loading a quantity of stone upon canal boats EXTENT OF RELIEF ON APPEAL TO COUNTY COURT ON THE LAW,-continued. and upon railroad cars, and that, in the hurry attendant upon the work, he forgot the hour, shows a sufficient excuse for his default. Bates v. Gorman, 8 Civ. Pro. 180. The county court will not grant a new trial in the justice's court, where the defendant purposely failed to appear on the trial, relying upon his right under the complaint to a new trial in the appellate court on appeal, which was cut off by an amendment of the complaint, allowed by the justice on an adjourned day in the absence of the defendant, reducing the amount demanded below fifty dollars. Risley v. Van De Linder, 17 Misc. 661; 41 Supp. 402. OTTAWAY v. LOWDEN. [55 App. Div. 410; 100 St. Rep. 952; 66 Supp. 952.] (Supreme Court, Appellate Division, Fourth Department. November, 20, 1900.) PHYSICIANS AND SURGEONS-LICENSE TO PRACTICE-IMPERFECT REGISTRA TION-VALIDATION-RETROACTION. Laws 1880, c. 513, § 4, provides that a person who holds a medical diploma from a school in another state may be registered to practice in this state on securing the approval of his diploma by the faculty of an incorporated medical school of this state and furnishing such other qualifications as they may require, and section 3 makes a violation of the act a misdemeanor. Laws 1893, c. 661, § 148, declares that a resigtration which is not legal because of some unintentional omission may be validated by obtaining from the regents of the state university a certificate of validation. Plaintiff's registration in 1886 was imperfect because his diploma was not approved by any medical faculty, and in 1899 the board of regents of the state university issued a certificate validating such registration. Held, that plaintiff could not recover for medical services rendered in 1894, since at that time he had no license, and to give a retroactive effect to section 148 would allow a recovery for services which constituted a misdemeanor at the time they were rendered.* Adams, P. J., and Laughlin, J., dissenting. *For note on "Registry of Physician as Prerequisite to Compensation," see 8 Ann Cas. 190. |