Schenck v. Marx — 3 Silv. Ct. App. 273

Majority

p. 273

John Schenck, Appellant, v. Mathew Marx, Respondent.

Court of Appeals,

Dec. 16, 1890.

Headnote

See 52 Hun, 614 , Mem.

Appeal. Court of appeals.—Where, in an action for money had and received, plaintiff recovers a judgment for less than $500, the amount in controversy is the amount of the original judgment, and, therefore, the court of appeals has no jurisdiction to entertain an appeal.

Appeal from a judgment of the general term of the supreme court, modifying, and affirming as modified, a judgment entered upon a judgment verdict.

Henry C. Wilcox, for appellant.

Mathew Marx, for respondent.

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 he dismissed, with costs.

All concur.