McLean v. Cole — 20 N.Y. Sup. Ct. 300

Majority

p. 300

ELIAS H. McLEAN, Respondent, v. JAMES O. COLE, Appellant.

Headnote

Question arising upon trial — cam, only he reviewed upon a ease settled — Worm of judgment in replevin.

No question, either of fact or of law, arising upon a trial — e. g., an objection that a judgment in replevin is for money only, instead of for a return of the property or for its value, in case of its non-delivery — can be reviewed upon appeal, except upon a case made and settled according to the established practice.

Motion to dismiss an appeal taken from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

p. 301

Eugene B. Trmis, for the appellant.

Elbert P. Jewries, for the respondent.

This action was tried at the Putnam court by a jury. The complaint was in the usual form for the recovery of the possession of personal property, or for its value, if a return could not be had. The appeal is taken without a case having been settled according to the practice of the court. The appellant has printed and served a copy of the judgment roll simply. By this it appears that the verdict of the jury was a money verdict only, for $756. The ground of the appeal is, that the verdict should have been for a return of the property or for the value in case of its nondelivery. The appellant claims the right to review this alleged error, as it appears on the judgment roll without a case. This cannot be done ; no question, either of fact or law, arising upon the trial can be reviewed except upon a case made and settled according to .established practice. (Conolly v. Conolly, 16 How., 227 ; Hunt v. Bloomer, 13 N. Y., 341 ; Johnson v. Whitlock, 13 id., 345 ; Smith v. Grant, 15 id., 590.)

The appeal must be dismissed with ten dollars costs.

Present — Barnard, P. L, and Gilbert J; Dykman, J., not sitting.

Motion to dismiss appeal granted, with ten dollars costs.