By the Court, Ruggles, Ch. J. The affidavit on which the motion to dismiss the appeal is founded, is fatally defective in not showing that the justice of the peace was ousted of his jurisdiction by the giving of the undertaking required by the Code,
section 56. This suit can not be regarded as a continuation of that before the justice, unless the party was prevented from going on before the justice, by the filing of the undertaking there, as well as the plea of title. The motion must be denied with ten dollars costs; but without prejudice to a future motion on sufficient affidavits.