The opinion
Johnson, J.
From the cases of Brotherton v. Wright (15 Wend., 237 ), and The People v. the Albany Common Pleas ( 19 Wend., 123 ), it appears not to be necessary that the record should show the identity of the suit in the common pleas with that begun in the justices’ court; for although it did not in those cases appear from the record the suits were regarded as continuations of those commenced in the justices’ courts. If this be so, then unless we are prepared to reject the authority of Brown v. Brown ( 6 How. Pr. Rep., 320 ,) in this court, we must look into the motion papers to see whether the suits are thereby shown to have been commenced in justices’ courts. If they appear to be so situated that in the supreme court the plaintiff on recovering less than $50 would be entitled to full costs against the defendants, even if title did not there come in question, then, I think, under the case of Brown v. Brown , we must hold *422 them to have originated in a justices’ court In this case it plainly appears from the affidavits that the cause did, in the sense of the rule, originate in a justices’ court, and therefore the appeal must be dismissed.
Motion granted, with $10 costs.