Knapp v. Deyo — 13 N.Y. St. Rep. 823

Majority

p. 823

Rowley H. Knapp, Resp’t, v. Ira N. Deyo, App’lt.^[1]

(Court of Appeals,

Filed February 28, 1888.)

Headnote

1. Practice—Appeal to court op appeals—Amount in controversy— Code Civ. Pro., § 191, subd. 3.

Where the amount in controversy controls the right to appeal to ih° court of appeals, See Code Civ. Pro., § 191 subd 3, Seld to mean the

p. 824

amount in controversy before the tribunal from which the appeal is taken to said court.

2. Same—How amount in controversy determined.

To'determine this amount resort may be had not only to the pleadings but also to the proceedings and evidence appearing in the record of the trial.

3. Same—When not appealable.

The complaint in this action set out a cause of action arising from services performed during a certain period aggregating $2,705.95 and admitted payments thereon to the amount of $2,047. It demanded judgment for the balance, $6->8.95. The answer admitted the indebtedness to the amount of $4'¿0. The evidence also showed that the amount in dispute was less than $500. Held, that it was not appealable to the court of appeals.

Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment in favor of the plaintiff.

John Gillette, for appTt; O. C. Armstrong, for resp’t.

The judgment in this action is not appealable to this court. The amount in controversy is less than five hundred dollars. Subd. 3, § 191, Code of Civil Procedure.

The case does not come within the exception to the rule, as the title to real property is not affected and no appeal to this court has been authorized by the order of the general term. The question, therefore, is to be determined solely by the amount in controversy. This is held to mean ihe amount in controversy before the tribunal from which the appeal is taken to this court. To determine this amount resort may be had not only to the pleadings but also to the proceedings and evidence appearing in the record of the trial. King v. Galvin, 62 N. Y., 238 ; Roosevelt v. Linkert, 67 id., 447; Brown v. Sigourny, 72 id., 122.

That the amount is less than five hundred dollars appears not alone from the pleadings but also from the evidence and offer of judgment. The complaint sets out a cause of action arising from services performed by plaintiff for defendant during a period of about six years, as a tinsmith, aggregating the sum of $2,705.95, and admits payments thereon to the amount of $2,047. It demands judgment for the balance, being $658.95. The answer admits an indebtedness to the amount of $420 by denying that it exceeds that amount, thus leaving the matter in controversy $238.95.

It appears, from an examination of the evidence and proceedings, that the issue tried was simply whether the .plaintiff should be allowed payment for a period ot 1,112£ days at the rate of $1.50 per day, or at that ot $1 75 This aggregated a difference of less than three hundred dollars To this sum may be added the amount of $125, winch was

p. 825

set up as a counterclaim by the answer, and still the amount in controversy would not reach the sum of $500. Accompanying the answer the defendant served an offer to allow the plaintiff to take judgment for $450, which would' leave the matter in dispute but little over tVvo hundred dollars.

In any view, therefore, the case is not one which this court is authorized to review.

The appeal should be dismissed, with costs.

All concur.