County Court, Onondaga County, March, 1896. [Vol. 16. no one, will of course insure the striking out of that clause at once, for any opposition would be inconsistent with the good faith of such claim. Ordered accordingly. H. WALTER FROST, Respondent, v. HELEN F. FROST, Appellant. (County Court, Onondaga County, March, 1896.) Justice's court-Reversal on error of fact- Judgment Restitution. On appeal from a justice's judgment in an action to recover the possession of chattels the same was reversed for an error in fact not affecting the merits. No application for restitution was made on the hearing, but the judgment entered by the appellant provided for a return of the chattels or their value. Held, that such a judgment was unauthorized. MOTION by plaintiff and respondent to vacate the judgment entered herein on the 23d day of January, 1896, and the execution issued thereon, on the ground, with other reasons, that the judgment is not in conformity to the decision which was rendered by the court in the above appeal. The decision was, in brief, that the judgment below should be reversed. The defendant entered a judgment declaring that the defendant is entitled to a return of the chattels in controversy, and, if a return cannot be had, to recover $200, and has issued an execution thereon. James E. Newell, for plaintiff. William Gilbert, for defendant. Ross, J. The only judgment which could be rendered upon the appeal by the County Court was to affirm or reverse the judgment of the justice in whole or in part. Code Civ. Pro., § 3063. And the effect of a reversal is to leave the parties litigant in the same condition as they were prior to the rendition of any judgment. Freeman on Judgments, § 481; Platz v. B. & C. C. & V. Co., 7 Misc. Rep. 476. In a proper case restitution may be compelled, but if not made upon the hearing, must be enforced by a motion pursuant to the terms of section 3058, Code of Civil Procedure (see Wait's Law and Misc.] County Court, Onondaga County, March, 1896. Practice, 1031), and cannot be ordered, as of course, by the clerk. Jacks v. Darrin, 1 Abb. Pr. 233. The Special Term case of Estus v. Baldwin, 9 How. 80, cited by the defendant's counsel, apparently was a decision upon the merits, for the court says: "But where the judgment of the appellate court is the end of the action * I think it is im * perative upon the court to order restitution." * * * For anything that appears to the contrary, a restitution may have been asked in the Estus case upon the hearing, but in this case the judgment was not upon the merits, but was upon an error in fact, which did not affect the merits at all. In Ellert v. Kelly, 10 How. Pr. 392-4, the following language is used: "When we are satisfied that all proper evidence was received, and the whole case is developed, we have power to order final judgment for the party prevailing on appeal; and when not so satisfied, we can only reverse and leave the parties to a further prosecution." A motion to vacate the judgment and to set aside the execution issued thereon is granted, and the same and each of them are hereby vacated and set aside, with $10 costs to the plaintiff of this motion; but without prejudice to the defendant entering a proper judgment upon the decision rendered upon the appeal herein, and to make such motion as she may be advised with reference to restitution. Ordered accordingly. T. P. JOHNSON, Respondent, v. CHARLES A. GILLETTE, Appellant. (County Court, Onondaga County, March, 1896.) 1. Constables - Action for fees - Evidence. In an action by a constable to recover fees for the service of a summons the justice's docket is competent evidence to show the rendition of the service. 2. Same-Payment. Nonpayment to the constable by the plaintiff of his fee is not shown by the entry of judgment in the docket or by testimony of the justice that the fees had not been paid, where the latter made no claim of knowledge of transactions between the plaintiff and the constable. County Court, Onondaga County, March, 1896. [Vol. 16. 3. Same Affidavit of travel. A blank affidavit as to travel which does not contain the constable's name and is signed only by the justice is not a compliance with section 3324 of the Code and does not entitle the constable to mileage. 4. Tender-Must be kept good. To effect a tender it must be shown affirmatively that the money was tendered unconditionally; that it has been kept ready at all times to pay on demand, and it must be brought into court and deposited at the time of answering. 5. Same-Waiver of failure to deposit. A failure to keep a tender good or to bring it into court is not waived in an action in justice's court by not objecting on that ground. APPEAL from judgment rendered by Calvin McCarthy, justice of the peace, October 8, 1895, in favor of the above-named plaintiff against the defendant. Damages, $1.05, and $2.20 costs; in all, $3.25. Peter B. Cole, for respondent. A. Lee Olmstead, for appellant. Ross, J. This action was brought by the plaintiff, a constable of the town of La Fayette, to recover for services rendered to the plaintiff for serving a summons in an action brought by the defendant in justice's court, and the defense, in brief, was that the charge made by the plaintiff was in excess of the amount to which he is entitled by law, and also a plea of tender; and it was also claimed by the defendant, upon the trial below, that the plaintiff had not made the affidavit required by section 3324, Code of Civil Procedure, to entitle him to charge for traveling fees. And also upon the close of the plaintiff's case, a motion was made for a nonsuit, upon the ground, with other reasons, that the plaintiff had not proved a cause of action. An appeal of this character should not be encouraged; no appeal which involves only a sum as trifling as the amount of judgment rendered by the court below, and which does not involve a question of character, or professional skill, should be viewed with favor by an appellate court. The plaintiff below offered in evidence the docket of the justice of the peace, containing an entry of the service of the summons Misc.] County Court, Onondaga County, March, 1896. by the plaintiff. The docket was competent evidence as tending to show the rendition of the service claimed by the plaintiff, that there was such an action pending, and that a return was made by the plaintiff as having served the summons therein. The evidence of the justice, from whom the first summons was obtained, proved the fact that the defendant in this action had brought before him an action in which he had recovered judgment, the summons in which was served by the plaintiff in this action," and while he swears that the fees in that case are unpaid, he also testifies that he delivered the summons to the plaintiff in that action, the defendant in this, and of necessity only speaks with reference to the payment of the fees to him. It is not claimed, either upon the direct or cross-examination, that he had any knowledge of what took place at any time between the plaintiff and defendant in this action, so at the close of the plaintiff's proof in this case the only evidence that the plaintiff had rendered any services for the defendant consisted in the fact that a summons was issued by the justice in the former case and given to the plaintiff, and was returned by the plaintiff as served. The plaintiff claims that the justice's docket in the former action, and the summons, and the constable's return, together with the evidence of the justice that the constable's fees were not paid (to him), make out a case. The justice's docket is evidence of any matter required by law to be entered therein. Code Civ. Pro., § 938. The justice is required, when he renders a judgment, to specify in his docket-book the items of costs allowed. Code Civ. Pro., $ 3078. I, therefore, determine that the justice's docket proved the rendition of the services by the plaintiff, and that the amount entered in the docket was $1.05, but nothing more; it does not prove that the defendant had not paid the plaintiff. A constable is entitled to demand and receive prepayment for any legal services rendered by him. Code Civ. Pro., § 3328. And is not the presumption as strong that he exercised that right and did receive payment when the services were rendered as that the defendant neglected to pay when the same became due? And it is a serious question if the fact of nonpayment was not a necessary fact to be averred and proved. Lent v. N. Y. & M. R. Co., 130 N. Y. 504, 510. County Court, Onondaga County, March, 1896. [Vol. 16. But any defect in the proof which is supplied during the trial will cure an erroneous refusal to nonsuit. Schenectady, etc., P. R. Co. v. Thatcher, 11 N. Y. 102; Kokomo, Straw Board Co. v. Inman, 134 id. 96. And the defendant fully supplied the evidence necessary to show nonpayment, and, indeed, the rendition of the services. The only controversy between the parties, as disclosed by the evidence of the defendant, was as to the amount the defendant should pay, he tendering forty-five cents, the plaintiff claiming $1.05. Was the plaintiff entitled, under the evidence heretofore specified, to receive $1.05? The affidavit, which the plaintiff claims was a compliance with section 3324 of the Code of Civil Procedure, does not contain the name of the affiant, is not signed by him, contains no statement as to the number of miles traveled, and is, in fact, only a blank affidavit signed by the justice, and is clearly defective. Section 3324, Code of Civil Procedure, provides that a constable who charges any traveling fees must show by affidavit that the travel is necessary. And further, that the justice must be satisfied that the miles charged for were actually and necessarily traveled. The section in question is more particularly to inform the justice and protect the judgment debtor. The judgment debtor in the former action could undoubtedly insist on having that judg ment corrected if the item was erroneously inserted, or if compelled to pay, could maintain an action against the constable for extortion. Sales v. Murphy, 8 Civ. Pro. 326. Query, whether the making of the affidavit required by section 3324 is a condition precedent necessary to be performed before the constable can recover from the plaintiff. The plaintiff, on the one hand, claims to have the right to be placed in a position where he will legally be entitled to enter judgment if successful for the amount of the costs paid to the constable by him, but, on the other hand, the amount which the plaintiff can require the justice to insert, if successful, does not by any means determine the amount of his liability to the constable; the amount of the constable's fees may be, by reason of the number of miles traveled in excess of the statutory costs, allowed to a successful party in justice's court, and yet the plaintiff could not plead and prove that fact in answer to a claim made by the constable for services rendered; but, in |