Hyperlawhypertext legal database Peterson v. Swan 30 N.Y. St. Rep. 208

← Cases

Peterson v. Swan

30 N.Y. St. Rep. 208 Court N.Y. Decision date 1890-03-21 English

Delivered by Peckham, J.

Contents

Majority

p. 208
John Peterson, App’lt, v. John Swan, Resp't.[1]
(Court of Appeals,
Filed March 21, 1890.)

Headnote

1. Appeal—xlMendment op case in court op appeals mat be made bt COURT BELOW WITHOUT MOTION.
Plaintiff's counsel moved in this court that the cause be remitted to the court below to amend the record if it should desire to do so. Held, that the molion is unnecessary and must be denied as the court below retains jurisdiction to enable it to make such amendment to the record as it shall deem proper. .
3. Same.
The court of appeals cannot review decisions of the lower courts entered by consent or taken merely pro forma where the record shows such facts.
Motion to remit case to court below for amendment.
Arthur L. Andrews, for motion; JSseh Gowen, opposed.

It has been frequently held by this court that although a copy of the record has been filed with the clerk, pursuant to the notice of appeal, yet the court below so far retains-jurisdiction of the case as to enable it to make such amendment to the record as it shall deem proper, and to order that the amendment shall be duly certified to us and filed with our clerk.

When thus filed, we regard it as part of the original return and proceed to hear the case as thus prepared. Of course, if the amendment be of such a nature as to show that the record as amended was not before the general term, we should not hear it, as our jurisdiction is confined to a review of the decisions actually made by that tribunal. N. Y. Cable Co. Case, 104 N. Y., 1 ; 4 N. Y. State Rep., 308.

The plaintiff’s motion to remit for the purpose of permitting the court below to amend the record if it should desire to do so,, is, therefore, unnecessary and must be denied.

The defendant’s motion for judgment will be held until the first motion day of the coming term, when it may be brought on without further notice. What disposition beneficial to the plaintiff can be then made of the case, it is somewhat difficult to see. If a record show that the order or judgment of a court below

p. 209
was by consent, or was not an actual determination of such court, an appeal to this court could hot be heard, for, as already stated, we cannot review decisions of the lower courts entered by consent or taken merely pro forma, where the record shows such facts.

All concur.