Kuklo v. Kleis — 18 N.Y. St. Rep. 724

Majority

p. 724

Frederick Kuklo, App’lt, v. John Kleis, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1888.)

Headnote

1. Appeals from justices’ courts to county courts—Code Crv. Pro., § 3063.

A county court has jurisdiction of appeals from justices’ courts only as provided hy statute. An appeal can only be dismissed by the county court when not brought to hearing before the end of the second term after the appeal is taken. In all other cases the county court must give judgment either of affirmance or reversion, in whole or in part.

3. Same—Statute to be strictly construed.

In an action where the justice is required by the statute to enter judgment forthwith, he has no jurisdiction to do so at a late day, and the fact that in this case the plaintiff consented to a judgment against him by a withdrawal of his action, does not change the rule in this respect, He only consented to a judgment to be entered forthwith, as required by the statute, and the justice having delayed to enter the judgment for ten days, the judgment was void.

3. Practice—Stipulation of respondent under section 3062 of Civil Code.

Irregularity in the entitling of the stipulation of respondent under section 3062 of the Code of Civil Procedure, which was not misleading to the appellant below, will not preclude the entering of judgment of reversal pursuant to the stipulation.

p. 725

Appeal from an order of the county court of Erie county, dismissing an appeal from the judgment of a justices’ court.

T. W. Schiller, for app’lt; H. S. Heath, for resp’t.

The judgment appealed from was entered on a withdrawal of the action in the justices’ court, but not until ten days after the action was withdrawn. The appeal was dismissed by the county court on the ground, as appears from the opinion of the county judge, that an appeal will not lie from a judgment so entered.

We think this disposition of the appeal was unauthorized. The county court has jurisdiction of appeals from justices’ courts only as provided by statute. Section 3062 of the Code of Civil Procedure prescribes the only case in which an appeal may be dismissed, viz., when not brought to a hearing before the end of the second term after the appeal is taken. In all other cases the county court must give judgment either of affirmance or reversal, in whole or in part (section 3063).

It was not competent, therefore, for the county court to dismiss the appeal in this case. It should have rendered a judgment either of affirmance or of reversal.

The views expressed by the county judge in his opinion would lead to affirmance; but this, we think, would have been error. The justice had lost jurisdiction of the case before he entered judgment. He was required to enter judgment forthwith. Section 3025. He had no jurisdiction to do so at a later day. So in numerous cases it has been held in respect to judgments required to be entered forthwith, under other provisions of the same section, or the •corresponding provision of the Revised Statutes. 2 R. S., 247, § 124; Watson v. Davis, 19 Wend., 371 ; Sibley v. Howard, 3 Denio, 72 .

The fact that in this case the plaintiff consented to a judgment against him by a withdrawal of his action does not change the rule in this respect. He has not consented to this judgment but only to a judgment to be entered forthwith as required by the statute. He has not consented to extend the jurisdiction of the justice for ten days to enable him to enter a judgment at the end of that time. If such an extension can be taken for ten days there is no reason why it might not be taken for ten months, and the burden be thrown on the plaintiff to show that he was prejudiced by the delay. The answer to all such propositions is that the justice had no jurisdiction to enter a judgment after the day on which the action was withdrawn.

For the reasons stated, the judgment of the justices’ court should have been reversed, and to this the respondent

p. 726

below had consented by a stipulation under the provisions of section 3062 of the Code. We think the county judge was right in the view intimated by him that the irregularity in the entitling of that stipulation was not such as to mislead the appellant below; and we see no reason why the judgment of the justices’ court might not have been reversed pursuant to that stipulation.

The order of the county court must be reversed, but without costs to either party.

All concur.