Lentilhon v. Mayor of New York — 5 N.Y. Super. Ct. 721

Majority

p. 721

Lentilhon v. The Mayor, Aldermen, and Commonalty of the City of New York.

Headnote

A judgment upon a verdict is not perfected, under the code, until entered in the judgment-book, with the amount of costs (if any) recoverable, inserted therein.

Until so entered, it is not a judgment from which an appeal can be taken to the general term.

If the prevailing party neglect to complete his judgment, the other party may notify him to do so, and after a reasonable time elapsed, the court on motion will compel him to perfect it with costs.

The entry made by the clerk, by the direction of the court, on receiving a verdict, of the judgment to be rendered thereon, is not the judgment.

The practice stated and approved, by which, after the jury pass upon the disputed facts, the judge gives a final judgment on rare or difficult points of law involved, with leave to appeal to the general term without security; where the parties so agree in open court, and no prejudice to either is likely to ensue.

An agreement in open court, on a verdict being given, that the defendant may appeal without security, followed by such an appeal, with no objection taken at the time, and treated as regular by various acts for four or five months afterwards, will preclude the plaintiff from then alleging that the appeal was null because no undertaking was executed pursuant to the code.

(Before Oaklet, Ch. J., and Sandfokd, J.)

Feb. 15, 1851.

The action was for tort, tried June 18th, 1850, before Paine, J., when a verdict was given for the plaintiffs. On the rendition of the same, the judge directed a judgment to be entered thereon, and the plaintiffs’ counsel agreed, in the presence of the court, that the defendants might appeal to the general term without giving security. The following entry of judgment was made subsequently, by the clerk of the court, in the judgment-book, the blank in which has never been filled, viz. (Title of the cause, date, and attorney.) “ This cause coming on to be tried before Justice Paine and a jury, the jury found a verdict for the plaintiff for $977 81 damages. On motion of J. Lux, plaintiff’s attorney, ordered judgment therefor with $ costs and disbursements.”

p. 722

On the 19th of June, the defendants treating this as a final judgment, gave notice of appeal therefrom to the clerk and the plaintiff’s attorney. Eo undertaking was filed, but the plaintiff’s attorney made no objection on that ground, until the December term; and in the mean time had received notices of argument without objection, and had signed a stipulation in which the cause was treated as pending before the general term, on appeal. The costs of suit have never been adjusted by the clerk, nor any step taken towards perfecting the judgment at the special term, beyond the entry before mentioned. The plaintiff now moves to strike the cause from the general term calendar, on the ground that the appeal was void, 1, because no judgment had been perfected ; and 2, no undertaking was filed.

J. Lux, for the plaintiff.

H. H. Anderson and A. J. Willard, for the defendants.

Since the code, a practice has to some extent prevailed in our court, by which the judge at the trial term, both parties consenting, has rendered a formal judgment, after the jury have passed on the disputed facts, without actually deciding the question of law involved, with leave to the losing party to appeal to the general term without security. The agreement of both parties to these terms is made in open court, and entered by the clerk in the minutes of the trial. We are disposed to encourage this practice, in cases where the questions of law presented are new or difficult, where an appeal is to be expected in any event, and where no prejudice is likely to ensue from the omission to give security. It frequently happens, that the court may in this mode dispose of the cause after a single trial before a jury, when an adverse ruling of the law would result in a reversal and a second trial.

It is not necessary in this case, to decide whether an agreement to waive security, made in open court, but not entered in the minutes, will be held to bind the party. Such an agreement, with the omission to object to the appeal, when made, because of the want of security, and the subsequent treatment of the

p. 723

appeal as pending, are sufficient to preclude the plaintiff from now setting up that the appeal was irregular and null for that cause.

There is, however, another difficulty which is insuperable. Ro judgment has been entered at the special term. The entry produced, so far as it is complete, is merely a transcript of the judge’s direction of the judgment to Joe rendered on the verdict, under section 264 of the code. The judgment itself, is to be entered by the cleric in the judgment ~boo\ as provided in section 279 and 280. In order to make this entry, the clerk, besides the judge’s direction as provided in section 264, was required in this case, to adjust the amount of the plaintiff’s costs and disbursements, and the interest accrued on the verdict.—(Code, § 310, 311.) Both of these items must be inserted in the entry of the judgment. Then, and not before, the judgment would be complete and perfect, and the clerk could make up the judgment roll, and the judgment could be docketed and collected. —(Ibid. § 281, 282, 287.)

This appears to us to be the plain effect of the code. It Is obvious that it should be so, because, after an appeal, the court below, the special term, can properly act no further in the matter, unless the judgment be reversed. If it be affirmed, it will remain precisely as it was when appealed from; and if that were in a shape incapable of execution, it would present an embarrassing question as to the jurisdiction of the court below to remedy the defect. In this case, the appeal was premature. If the prevailing party neglect to complete his judgment, when the other party is desirous to appeal and obtain a speedy decision, the course of the latter is to notify the former to perfect his judgment for that purpose ; and if he do not perfect it in a reasonable time, the court will, on motion, compel him to do so with costs, unless some good cause, for the delay be shown.

The appeal must be dismissed, without costs to either party.