Hyperlawhypertext legal database Smith v. Evans 1 Abb. N. Cas. 396

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Smith v. Evans

1 Abb. N. Cas. 396 Court City Court of Brooklyn; General Term, English

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p. 396
SMITH v. EVANS.
City Court of Brooklyn; General Term,
January, 1876.

Headnote

Appeal.—Limit op Time.—Security on Appeal in City Court.
If after notice to limit the time to appeal has been given, the judgment is amended in amount, even nunc pro tunc, a new notice is
p. 397
necessary to limit the time to appeal from the amended judgment.[1]
Security is not éssential to effectuate an appeal from special to general term, in the city court of Brooklyn.
Appeal from a judgment and order denying motion for a new trial.
This action was commenced in April, 1874, by John N. Smith, to recover damages from Charles E. Evans, for injury to property.
The plaintiff recovered a judgment for $492.15, which was entered as of November 19, 1875. On January 4, 1876, defendant’s attorney obtained an order correcting the judgment, by reducing it by the amount of $50, and directing that the order be entered as of the date of the judgment. On January 12, 1876, defendant appealed from the judgment thus modified. The appeal was taken within due time, if computed from notice of the amendment or correction, but not in due time if computed from notice of the original entry of judgment. It was also objected that no security on appeal had been given.
B. E. Valentine, for appellant.
H. C. Place, for respondent.

I think the appeal is taken in time.

The modification of the judgment by the order entered January 4, 1876, directing the reduction of the same by the sum of $50, has the effect of rendering null the notice of appeal heretofore served.

The judgment was originally entered as of November 19, 1875, for $492.15, and by order of the court made January 4, 1876, the judgment has been reduced

p. 398
so that it now stands as a judgment for $442.15. It is true that the order of January 4,1876, directs the modification to be made as of November 19,1875, but this is only for the purpose of preserving any lien which might have been acquired by the docket of the judgment ; it cannot, however, make the notice of entry of a judgment for $492.15, answer as notice of the entry of a judgment for $442.15 (See Champion v. Plymouth Soc., 42 Barb. 441 ; Sherman v. Wells, 14 How. Pr. 522 ).

The act of 1849 (sec. 6, chap. 125) did require security on appeal from the city court to the supreme court, precisely as under the Code, security was required on appeal from the supreme court to the court of appeals. This was on the theory that in each instance, as the cause was passing from one court to another, it was proper to indemnify the successful party against the costs and disbursements of the appeal. So long, however, as the cause continued in the court in which it was commenced, there was no provision by which security was required on any appeal.

The act of 1870, re-organizing the city court and creating a general term in that court (which never existed before), has provided expressly, as we read it, that all appeals to the general term shall be governed by the provisions of the Code relating to appeals in the supreme court to its general term: “ All provisions of chapter four, of title eleven, of the Code, shall apply to the appeals so taken.” Section 6, chapter 470, Laws of 1870, remodeling, so to speak, section 6 of the original city court act, so as to apply to the altered constitution of the court. The same rules apply, therefore, in this court, as in the supreme court, in respect to appeals to the general term.

The motion to dismiss appeal and vacate the extensions of time for making and serving case denied,, but without costs.

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