Roosevelt v. Linkert — 67 N.Y. 447

Majority

p. 447

Charles H. Roosevelt, Respondent, v. Victor Linkert, Appellant.

Headnote

Where a judgment is for the recovery of a sum of money, to give a right of appeal to this court, under the amendment of 1874, to section 11 of the Code (chap. 322, Laws of 1874), the judgment must, in all cases, exceed $500.

(Argued December 5, 1876;

decided December 17, 1876.)

This was a motion to dismiss an appeal.

The facts sufficiently appear in the opinion.

Mari/m J. Keogh for the appellant.

Charles H. Roosevelt, respondent, in person.

This action was commenced by the plaintiff to recover a balance of $997.52, alleged to be due him for services, as an attorney, rendered for the defendant. Besides other defences, the defendant alleged, in his answer, certain counter-claims, amounting to $1,322.32, and claimed judgment against the plaintiff for that amount, besides interest.

The action was tried before a referee, who found the value of plaintiff’s services as attorney for defendant to be the sum of $1,303.34, of which he had been paid the sum of $320.50, leaving a balance of $982.84 due; and he found the counterclaims of the defendant to amount to $595.50, and the balance due plaintiff, after deducting the counter-claims, $387.34. For the latter sum, with interest, amounting to $412.29, he ordered judgment in favor of the plaintiff. Judgment having been entered for this sum, besides costs, the defendant appealed to the General Term of the Supreme Court, and from judgment of affirmance there, to this court. This motion is now made by the plaintiff to dismiss the appeal, under the act chapter 322 of the Laws of 1874, on the ground that the judgment, exclusive of costs, does not exceed $500. That act provides that no appeal shall be taken to the Court of Appeals “ where the amount of the judgment or subject-matter in

p. 448

controversy in the action or proceeding does not exceed $500.” If either the judgment or the subject-matter in controversy does not exceed $500 there can be no appeal to this court. If the judgment be for the recovery of an amount of money, to give the right of appeal, it must, in all cases, exceed $500. When the action is not one “ affecting the title to real estate or an interest therein,” and there is no judgment for money, then the subject-matter in controversy must exceed $500. To ascertain the amount of the subject-matter in controversy, in such cases, the pleadings will not alone be looked to, but the whole case, to see what the real controversy is and the amount of it, except in the single case mentioned in the act, to wit, “in actions not founded upon contract, when the judgment appealed from is for the defendant the amount claimed in the complaint shall be deemed the amount of the subject-matter of the controversy.” In King v. Galvin ( 62 N. Y., 238 ) the action was in tort and the judgment was for the defendant; the plaintiff appealed. The complaint, as framed, claimed more than $500, but the amount claimed was, by stipulation, reduced below that sum, and this court held, on that account, that the case was not appealable.

The appeal must be dismissed, with costs of appeal to time of making the motion, and ten dollars costs of motion.

All concur.

Appeal dismissed.