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Schenck v. Marx

34 N.Y. St. Rep. 607 Court N.Y. Decision date 1890-12-16 English

Delivered by Earl, J.

Contents

Majority

p. 607
John Schenck, App’lt, v. Mathew Marx, Resp’t.[1]
(Court of Appeals,
Filed December 16, 1890.)

Headnote

Appeal—Limitation op.
Where a judgment, founded upon an implied contract for money had and received exclusive of costs is less than §500, an appeal is not allowed to this c-urt.
Appeal from judgment of the supreme court, general term, second department, reducing verdict for plaintiff from $238.70 and costs to $60.
Henry G. Wilcox, for app’lt; Mathew Marx, for resp’t

This action is founded upon an implied contract for money had and received. Hence an appeal from any judgment rendered in the action is not allowed to this court by § 191 of the Code if the matter in controversy is less than $500. The judgment, exclusive of costs, is for $238.70. The plaintiff was satisfied with the judgment and did not appeal therefrom. The defendant was not satisfied and appealed, and hence thereafter the only controversy between the parties was over that judgment. The general term reduced the judgment to $60 and interest, and affirmed it as thus modified. The plaintiff complains of the modification, and the matter still in controversy is no more than the amount of the original judgment. But if we go behind the original judgment, it is impossible to see upon the plaintiff’s own evidence and claim at the trial, how the matter in controversy was as much as $500. Hence we have no jurisdiction to entertain this appeal, and it must be dismissed, with costs.

All concur.