p. 721John N. Granville, Resp’t, v. The New York Central and Hudson River R. R. Co., Appl’t.Headnote
1. Appeal — By defendant to coubt of appeals — What is the amount IN CONTROVERSY — CODE ClV. PliO., § 191.The complaint in this action demanded $400 damages, upon a trial before a referee this sum was awarded with $156 interest. Judgment was entered in favor of tha plaintiff for the sum.of $556 with costs and disbursements. Upon a motion made by the plaintiff to dismiss the defendant’s appeal to the court of appeals because the amount in controversy was less than $500. Meld, that neither the limitation expressed in the complaint nor the method by which the referee ascertained and made up the aggregate of the damages was material. That the amount in controversy upon the defendant’s appeal to the court of appeals was the amount of the judgment as rendered and from which the appeal was taken.
2. Same — Code Civ. Pbo.. § 191, sued. 3.
Meld, that upon an appeal by the plaintiff from the judgment in such an action the sum for which the complaint demands judgment becomes material (Code Civ. Pro., §191, subd. 3), but that the provision of the Code making it so had no application to the present case.
Motion to dismiss an appeal from a judgment of the supreme court, general term, fourth department.
M. D. Barnett, for the motion j G. 1>. Prescott, opposed.
The plaintiff sues for injuries to personal property caused by defendant’s negligence, and after issue joined, was upon trial before a referee awarded $400, with $156 interest making a total of $556, and for this sum judgment was ordered in his favor. The record shows that judgment was so entered. “ Damages $556 and $357.44 costs and disbursements.” Upon appeal to the general term, it was affirmed, and from the judgment of affirmance, the defendant appealed to this court. The plaintiff moves to dismiss the appeal upon the ground as stated in the notice of motion “ that the amount in controversy in this action is less than $500.” This contention is put upon the comolaint, which alleges damages only to the amount of $400,
p. 722and demands jndgment accordingly. But neither this limitation, nor the method by which the referee ascertained and then made up the aggregate of damages is material. The matter in controversy in this court upon the defendant’s appeal is the amount of the judgment as rendered, and from which the appeal is taken.
Brown v. Sigourney, 72 N. Y. 122 . And if that, excluding costs, is not less than $500, we have jurisdiction to review it. A different rule restricts the plaintiff. Upon an appeal by him from a judgment in such an action, the sum for which the complaint demands judgment becomes material. Code, § 191, subd. 3. But the provision of the Code which makes it so has no application here. .
The motion should be denied, with $10 costs.
All concur.