Myers v. White — 37 How. Pr. 393

Majority

p. 393

SUPREME COURT.

Abram Myers agt. Joseph D. White.

Headnote

A notice of appeal which fairly apprises the opposite party that the damages are excessive, is sufficiently specific under section 371 of the Code to call upon such party to make an offer.

If such party remains silent, he does so at his peril, and if the verdict on appeal is reduced ten dollars, the appellant is entitled to costs.

Albany General Term, September, 1868.

Before Peckham, Ingalls and Hogeboom, Justices.

Banker & Rising) for plaintiff.

Forsyth & Fursman, for defendant.

This was an appeal by the plaintiff from an order of the Rensselaer county court, refusing to strike out 'the costs which had been awarded to the defendant.

The plaintiff recovered a judgment before the justice, December 6, 1866, for $99 damages and $18.65 costs.

The defendant appealed to the county court, where, on the new trial, the plaintiff recovered $61.28. That part of the notice of appeal upon which the case turned was as follows :

“5. The defendant claims that the judgment should have been more favorable to him, in the following particulars:

That the judgment for damages is for too large a sum and'ought not to have been given for more than $33.33 damages with $5 costs, instead of $18.65, if not so amended should be reversed.”

The plaintiff did not make any offer.

The order, allowing costs to the defendant, was affirmed.

The opinion was given by Justice Peckham, approving the case of Fox agt. Nellis ( 25 How., 144 ).