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Dunham v. Simmons

5 Hill & Den. 507 Court N.Y. Sup. Ct. English

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p. 507
Dunham vs. Simmons.

Headnote

On reversing a judgment, if no venire dé novo be ¿warded, the court of review renders such judgment as should have been given in the court below. Per Bronson, J.
Where a justice’s judgment was reversed in the common pleas on certiorari, and this court afterwards reversed the judgment of the common pleas, affirming that of the justice; held,, that the party ihiis finally prevailing had a right to insert in his record the costs to which he would have been entitled in the common pleas, had the júdgment there been in his favor.
Dunham sued Simhitiiis before a justice; and recovered judgment, which was reversed by the common pleas on certiorari; This court reversed the judgment of the C; P;; ahd affifined that of the justice. Dunham included in the judgment record in this court $20 for his costs on the certibrari in the Ci P., and
p. 508
E. A. Doolittle, for Simmons,
moved to set aside the judgment record so far as related to the $20 costs. He cited Sess. Laws of 1836, p. 794, § 2; 13 Wend. 649 , 655; 6 id. 529; 7 John. 470 ; 5 East, 49; 2 Hill, 391 .
A. Taber, contra,
cited Sess. Laws of 1840, p. 332, § 12; Pangburn v. Ramsay, ( 11 John. 141 ;) Close v. Stuart, ( 4 Wend. 95 .)

On reversing a judgment, the court of review, except where a venire de novo is awarded, renders such judgment as should have been given in the court below. Accordingly, in this case, we affirmed the judgment of the justice—that being the judgment which we thought the C. P. should have rendered. Had the C. P. given that judgment, the right of Dunham to $20 costs would have followed as a matter of course, and without any special order of the court. (Sess. Laws of 1840, p. 332, § 12.) In perfecting a judgment in this court for his costs in the C. P., Dunham has only followed out the consequences of-affirming the judgment of the justice. He has got nothing more than what the court below should have awarded to him. He was not entitled to any costs in this court; (Sess. Laws of 1836, p. 794, § 2;) and none were included, in the judgment.

Motion denied.

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