Murphy v. Long — 1 Hilt. 309

Majority

p. 309

Thomas Murphy v. William Long.

Headnote

The general term of the Marine Court has no power, on appeal from a judgment, to make an absolute order that it be modified by Increasing the amount.

Where, however, a judgment appealed from is palpably too small in amount, an order may be made directing that there be a new trial, unless the defendant consents to a specified increase.

Appeal from a judgment of tbe general term of tbe Marine Court. Tbe facts appear in tbe opinion of tbe court.

F. Cahill, for tbe appellant.

P. Callaghan, for tbe respondent.

Tbe justice, at tbe special term of tbe Marine Court, rendered judgment for tbe plaintiff for $137.88, and $12 allowance. Tbe plaintiff appealed from tbe judgment thereon entered to tbe general term of tbat court, and, after bearing tbe respective counsel for tbe parties, tbe general term made an order tbat tbe judgment be so modified tbat tbe plaintiff recover of tbe defendant $209.88, together with $19.25 — in all $229.18, and tbat said judgment be entered as of tbe 29th dav of January, 1856.

Tbe general term exercised, in thus increasing tbe judgment, a power not possessed by it, and never exercised by courts in banc in England or this state. Sometimes, where the verdict or finding is palpably too small, tbe court has ordered an increase of tbe judgment, if tbe defendant consented, to avoid the necessity and expense of another trial (see Richards v. Sandford, 2 E. D. Smith, 349), but not otherwise. Tbe general term of tbe Marine Court might have directed a new trial, unless tbe defendant consented to tbe increase of tbe judgment, beyond tbat they bad no jurisdiction. Tbe language of tbe order of tbe general term is, tbat tbe judgment be modified, which could not be accomplished by increasing tbe judgment.

Judgment reversed.