Doron v. McLoughlin

Headnote

Judgment in Justice's Court — appeal to County Court —notice of — when respondent must make offer to correct the judgment — costs.

This action originated in a court of a justice of the peace. The plaintiff recovered a judgment in that court for $145.92. The plaintiff’s claim was for work done, and the defendant by his answer denied any liability for work done, and set up an offset thereto. The defendant appealed to the County Court, and in his notice of appeal sot forth, among other grounds of error, the following:

3. That the justice erred in rendering judgment against the defendant in favor of the plaintiff for $145.92.

4. That the justice erred in rendering judgment against the defendant for any sum whatever.

That the justice erred in not rendering judgment against the plaintiff, and in favor of the defendant for forty dollars. There was no offer to correct the judgment, and upon the new trial in the County Court, the verdict of the jury was in favor of plaintiff for $59.10.

The court, at General Term, said: “The notice of appeal in these cases seems to come fairly within the principle determined in the cases of Younghanse v. Fingar (47 N. Y. R., 99); and in Bigsby v. Warden ( 62 N. Y., 27 ). In both of those cases the notices of appeal alleged only that the judgment should not have exceeded a certain sum.

“ In this case the notice asserts that the whole judgment was wrong ; that it should have been in favor of defendant fox forty dollars. I cannot distinguish this case from the case above cited. In those cases one notice stated that the judgment should not have been for more than ten dollars. In the other not more than twenty-five dollars.

“ In this it is all Avrong. It should have been for the defendant forty dollars. In all the cases the allegation is plain. The judgment is for too much. It should have been for the defendant. It should have been for the defendant against the plaintiff for forty dollars. There having been no offer, and the judgment having been reduced over ten dollars, the appellant Avas entitled to costs.”