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turned that the testimony of two of the defendant's witnesses was given in a manner to deprive it of any weight, the appellate court refused to disturb the judgment, although, from the testimony returned, it probably would have come to a different conclusion as to the facts, from that arrived at by the justice (id.) The court refused to reverse a judgment in an action for damages, sustained by a nuisance, on the ground that the damages were excessive (Cropsey v. Murphy, 1 Hilton, 126).

a. The judgment of a district court will not be reversed on the ground that the court below allowed an amendment of the complaint, from breach of contract to tort (Doughty v. Crozier, 9 Abb. 411).

6. When the judgment will be reversed.-Where, after a motion for a nonsuit, the defendant supplies the omission of proof, only in part, the judgment will be reversed (Lambert v. Seely, 17 How. 432).

c. The failure of a justice of a district court to give judgment within four [now eight] days after the cause is submitted to him, deprives him of jurisdiction, and renders the judgment a nullity (Wiseman v. Panama R. R. Co. 1 Hilton, 300). Whether the consent of the parties to the cause extending the time for giving judgment relieves the difficulty, query? (id.)

d. A judgment of the marine court will be reversed when the action has been commenced by a short summons, and there is no proof returned to the common pleas of the defendant's nonresidence (Davidson v. Rushmore, 1 Hilton, 123).

e. Where, after the justice had disposed of the business before him, and a defendant who was in attendance asked him for the cause in which he had been summoned, and was informed by the justice that he had no such cause, and the defendant thereupon left the court,-held that the plaintiff could not afterwards proceed in the cause in the defendant's absence (Murling v. Grote, 1 Hilton, 116).

f. A judgment was reversed because it was rendered while counsel was summing up and before he had concluded (Prentice v. Sprague, 1 Hilton, 428).

g. When the court can only affirm the judgment.-Where the grounds of an appeal, prosecuted by one party, are insufficient, the appellate court, unless the other party has also appealed, can only affirm the judgment, although the case would have justified a recovery for a larger amount than is awarded in the judgment (Glassner v. Wheaton, 2 E. D. Smith, 352). Thus, where the plaintiff had judgment for $30, from which judgment the defendant alone appealed, the appellate court thought the judgment should have been for $70 instead of $30; but as the plaintiff had not appealed, it was held that the appellate could do no more than affirm the judgment. And see Berrian v. Olmstead, (4 id. 279).

h. Mistakes can only be corrected by a reversal of the judgment.—Where a justice, by mistake, entered judgment for $13 instead of $36, and the defendant would not consent to have it amended, the plaintiff appealed. It was held that the appellate court could not correct the error; they had power only to reverse the judgment (Hardy v. Seelye, 3 Abb. 103; 1 Hilton, 90; and see Bunker v. Latson, 1 E. D. Smith, 410; Edwards v. Drew, 2 id. 55; contra, Fields v. Mole, 15 Abb. 7; Lewis v. Fox, 11 Abb. 134, 281; 19 How. 561; 20 How. 96). Where both parties appear, and a trial is had, the court cannot reverse, except for error (Story v. Bishop, 4 E. D. Smith, 423). Where the judgment appeared to be plainly erroneous, being in form against two defendants, when the return showed that the plaintiff at the trial discontinued as to one of them, the court doubting its power to correct the error, reversed the judgment (Fanning v. Lent, 3 id. 206). If the appellate court think the judgment is for the right party, but for too large an amount, semble, it cannot reduce the amount (Kasson v. Mills, 8 How. 377). But where the evidence wholly fails to support a judgment for the damages awarded, but would sustain a judgment for a less amount, the court on appeal may suffer the plaintiff to retain the judgment for such sum as appears just, and may reverse as to the excess, if the plaintiff so elect (La Motte v. Archer, 4 E. D.

Smith, 46). Where a judgment of one of the lower courts is reversed on appeal, the court has the power to go further than a mere reversal, and give the judgment which should have been awarded below (Fraser v. Child, 4 E. D. Smith, 243; Brownell v. Winnie, 29 N. Y. 400).

ɑ. New trial.—Power of the court to order, where defendant appeared.—The New York common pleas has not a general discretionary power to order a new trial upon appeal from one of the lower courts, merely because it seems that the ends of justice would be thereby promoted (Story v. Bishop, 4 E. D. Smith, 423); nor for newly-discovered evidence (Schwartz v. Bendall, 2 E. D. Smith, 123); nor because the defendant neglected to produce evidence, but did not at the trial think it necessary (Bunker v. Latson, 1 E. D. Smith, 410; Edwards v. Drew, 2 id. 55).

b. The giving a new trial, where the claim, by either party, exceeds fifty dollars, means a bona fide claim, and not a claim set up merely to secure a new trial (Houghton v. Kenyon, 38 How. 107; and see Stevens v. Benton, 39 How. 13). Orders granting a new trial not appealable (Wavel v. Wiles, 24 N. Y. 635).

c. New trial.—Power of the court to order, where defend. ant did not appear, and manifest injustice has been done.— This provision only applies to cases where the defendant does not appear on the trial (Bunker v. Latson, 1 E. D. Smith, 410; Edwards v. Drew, 2 id. 55; Rawson v. Grow, 4 id. 18; Hunt v. Westervelt, id. 225), on the return day (Wilde v. N. Y. & Harlem R. R. Co. 1 Hilton, 47; Williams v. McAuley, 3 E. D. Smith, 120; but see Beebe v. Roberts, id. 194; Armstrong v. Craig, 18 Barb. 387; Mix v. White, 1 id. 614; see Tanner v. Marsh, 53 Barb. 438).

d. The defendant, to entitle himself to relief, must not only satisfactorily excuse his default, but he must go further. He must show that manifest injustice has been done. A bare affidavit of merits is not sufficient. Facts must be stated, and not conclusions, to enable the court to see that such injustice exists (Armstrong v. Craig, 18 Barb. 387; Fowler v. Colyer, 2 E. D. Smith, 125). And the appellant's (defendant's) affidavit merely will not be sufficient, when contradicted by the affidavit of the plaintiff, and of a witness who proved the claim on the trial (Gottsberger v. Harned, 2 E. D. Smith, 128). Where a party seeks to procure a new trial under such circumstances, he should furnish, in addition to his own affidavit, the testimony of a witness to establish his defense (id.; and see Van Wyck v. Kelly, id. note b.; Gardner v. Wight, 3 id. 334; Silkman v. Boiger, 4 id. 236; Lent v. Jones, id. 52; Camp v. Stewart, 2 id. 88).

e. The fact that the defendant mistook the return-day of the summons may form sufficient ground for directing a new trial (Gottsberger v. Harned, 2 E. D. Smith, 128; Gardner v. Wight, 3 id. 334). But the mere fact that the defendant "forgot the time of trial," unaccompanied by any circumstances explaining or excusing his forgetfulness, is not satisfactorily excusing his default (id.; Ball v. Mander, 19 How. 468; Beebe v. Roberts, 3 E. D. Smith, 194). Default, satisfactorily excused by reason of the "mistake," or "neglect " of the attorney or agent (Seymour v. Elmer, 4 E. D. Smith, 199; 1 Abb. 412; Camp v. Stewart, 2 E. D. Smith, 88). Default, not "satisfactorily excused" (Travis v. Bassett, 3 E. D. Smith, 171; Bissel v. Dean, id. 172; Fowler v. Colyer, 2 id. 125; Mulhearn v. Hyde, 3 id. 177; Forster v. Capewell, 1 Hilton, 47; Mayor of N. Y. v. Green, id. 393); “manifest injustice" not shown (Travis v. Bassett 3 E. D. Smith, 177; Haughey v. Wilson, 1 Hilton, 260).

f. Appeal upon error in fact.-On an appeal founded on error in fact, the appellant should serve, before or with the notice of the argument of the appeal, the affidavits of the facts relied on as constituting the error (Hurd v. Beeman, 8 How. 254; approved, Cook v. Swift, 10 How. 215). Where there are conflicting affidavits as to an alleged error in fact, the return of the justice will in certain cases govern (Kelly v. Brower, 1 Hilton,

g. The words errors of fact, as used in this section, have no reference to

an erroneous finding of the court or jury upon the evidence, but they refer to those errors of fact not appearing from the record or evidence, such as the infancy, coverture, &c., of some of the parties who have not properly appeared (Kasson v. Mills, 8 How. 377; Bigelow v. Sanders, 22 Barb. 147; and see Adsit v. Wilson, 7 How. 64; Hurd v. Beeman, 8 id. 256). On such appeals affidavits are necessarily received to "show the commission of the error in fact, not affecting the merits and not within the knowledge of the justice" (Beebe v. Roberts, 3 E. D. Smith, 195).

a. Where a summons was, during the absence of the defendant from home, served upon his son, and returned by the constable personally served, and the justice, without any appearance by the defendant, rendered judgment for the plaintiff,-held that the judgment might be reversed on appeal, on the error as to the service being clearly shown to the appellate court (Fitch v. Devlin, 15 Barb. 47; see, however, Carroll v. Goslin, 2 E. D. Smith, 376; Tanner v. Marsh, 36 How. 140; 53 Barb. 438). Where a nonresident was sued by a long summons, on the return-day he appeared before the justice and stated he did not appear in the action, but attended only to inform the court he was a nonresident; he did nothing more, and left the court. The plaintiff took judgment. On the appeal to the county court, defendant offered affidavits to show his nonresidency; that court rejected them, and affirmed the judgment. On appeal, the supreme court held that the affidavits should have been received, and reversed the judgment of the county court and of the justice (Willins v. Wheeler, 8 Abb. 116; 17 How. 93).

b. Argument of appeal.—Appeals to the New York common pleas are heard orally, at the general term appointed for the submission thereof. The court requires both parties to be ready when the appeal is called. Engagement of counsel elsewhere is not a sufficient ground for a postponement (Tryon v. Jennings, 12 Abb. 33; 22 How. 421). The parties will be confined on the argument to a brief statement of the facts and points involved and authorities relied on, unless the court shall otherwise direct (Rule Oct. 1857). The return must be submitted (Smith v. Van Brunt, 2 E. D. Smith, 178), and suitable points should be furnished by counsel on the submission of an appeal (De Agreda v. Faulberg, 3 E. D. Smith, 178; Suydam v. Munson, 2 id. 198).

c. Judgment of affirmance.—On affirmance of a judgment, judgment is to be entered of affirmance and for the costs of the appeal, nothing more. These costs may be collected by execution (Onderdonk v. Emmons, 2 Hilton, 504).

d. Opening judgment of affirmance by default.-On an application to open a judgment of affirmance taken by default, the court requires the appellant to show a meritorious ground of appeal, and this ascertained by the statement of the case without argument, or by inspection of the return (Tryon v. Jennings, 12 Abb. 33; 22 How. 421).

e. Reversal in part.-The appellate court may reverse a justice's judgment as to one defendant and affirm it as to another (Fields v. Moul, 15 Abb. 6).

f. Conditions on reversal.-The appellate court cannot engraft on a judgment of reversal any provision for preserving the testimony of a witness taken on the trial, although such witness has left the State, and his testimony cannot be procured on a new trial (Norris v. Bleakley, 3 Abb. 107; 1 Hilton, 90).

g. Effect of reversal.-Where a judgment for the plaintiff is reversed without an award of judgment for the defendant upon the merits, such reversal is not conclusive of the rights of the parties (Ellert v. Kelly, 4 E. D. Smith, 12; 10 How. 392). A judgment reversed on technical grounds is not a bar to a subsequent action (Onderdonk v. Ranlett, 3 Hill, 323), nor is a judgment in a case in which the justice had no jurisdiction (Blin v. Campbell, 14 Johns. 432; Kintz v. McNeal, 1 Denio, 436). After reversal of a judgment of nonsuit, plaintiff's course is to proceed de novo (Anon. 9 Wend. 503).

h. Amending judgment.-The New York court of common pleas

has power to allow an amendment of the entry of judgment of affirmance, ordered on appeal from the inferior courts, where erroneously entered through mistake; and the power will be exercised when no injustice is caused thereby (Bagley v. Brown, 3 E. D. Smith, 66; and see Fields v. Moul, 15 Abb. 7).

a. Rehearing of appeal.-A rehearing of appeal will not be granted, where no advantage could result from it, and where the court is satisfied that a rehearing would lead to the same result as had been already arrived at (Teaz v. Chrystie, 2 Abb. 259; 2 Hilton, 135).

§ 367. (Am'd 1852, 1865, 1869.) Judgment-roll.

To every judgment upon appeal there shall be annexed the return upon which it was heard, or a certified copy thereof, the notice of appeal, with any offer, verdict, decision of the court, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment, which shall be filed with the clerk of the court, and shall constitute the judgment-roll.

Award of costs.

§ 368. (Am'd 1849.) If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party.

b. Costs on partial affirmance.—Where a judgment was affirmed in part and reversed in part, the respondent was allowed his costs in the court below, but was required to pay the costs of the appeal (Cole v. Swanston, 1 Cal. R. 51).

c. When the court must award costs.-In affirming a judg ment, the appellate court is compelled by statute to award costs to the respondent, and has no power to relieve from the payment of those costs (Logue v. Gillick, 1 E. D. Smith, 398); and on reversing a judgment the court has no discretion as to costs. The reversal must be with costs (Hahn v. Van Doren, id. 411; Main v. Eagle, ib. 621; Chapin v. Churchill, 12 How. 367; Snyder v. Goodrich, 2 E. D. Smith, 85; see now, however, § 371, post).

d. Costs of court below.-Where a judgment for plaintiff is reversed, without an award of judgment for the defendant, the defendant's cost in the court below cannot be allowed to him and included in the judgment of reversal (Ellert v. Kelly, 4 E. D. Smith, 12). Whether such costs should be allowed to the appellant, where the appellate court not only reverses the judgment below, but also orders judgment final for the appellant upon the merits, query? (id.; see Lewis v. Fox, 19 How. 561, 281; 20 How. 96, note; 11 Abb. 134).

e. A respondent who succeeds on an appeal is entitled to the judgment of the appellate court in affirmance of his judgment. Whether the whole judg ment, with the costs of appeal, can be collected by execution issued out of the appellate court, when the transcript of the original judgment has not been filed with the county clerk, query? It seems that the respondent, on affirmance, is not required to issue execution out of this court to collect the amount of the original judgment, and that there is no difference between the marine and justices' courts and any other, in respect to the effect of an appeal upon the power of the court below, to enforce its own judgment (Smith v. Allen, 2 E. D. Smith, 259; see Onderdonk v. Emmons, 2 Hilton, 504).

f. Payment of judgment pending the appeal.-Pending an

appeal from a judgment obtained in a justice's court in favor of the plaintiff, the defendant paid the judgment without costs of appeal, to a son of the plaintiff, who was not shown to have had any authority to receive the payment. The judgment was afterward affirmed by default, the defendant not appearing; and the plaintiff issued execution directing a levy simply for the cost of appeal,-held regular and proper. If a party who has appealed from a judgment relies upon a payment thereof as a reason for a stay of proceedings, he should appear and apply for an order accordingly, before judgment of affirmance is entered (Adams v. Kearney, 2 E. D. Smith, 42; see Champion v. Plymouth Cong. Soc. 42 Barb. 441).

$369. (Am'd 1849, 1857.) Restitution.

If the judgment below, or any part thereof, be paid or collected, and the judgment be afterward reversed, the appellate court shall order the amount paid or collected to be restored with interest from the time of such payment or collection. The order may be obtained on proof of the facts made at or after the hearing, upon a previous notice of six days; and if the order shall be made before the judgment is entered, the amount may be included in the judgment.

a. When restitution will be ordered.--Where, upon a reversal, it appears by a transcript from the docket, that the judgment has been satisfied, restitution will be ordered (Hunt v. Westervelt, 4 E. D. Smith, 225).

b. Where a judgment of the court below has been paid before writ of error brought, but not satisfied of record, on reversal thereof the plaintiff in error cannot enter a suggestion and award of restitution of payment in his record of reversal, without leave of the court. It is otherwise where the judgment below is satisfied of record. There the evidence of payment comes up with the record, and restitution is a matter of course (Sheridan v. Mann, 5 How. 201).

c. The proper course, where a party appealing is entitled to a restoration, is a motion in the appellate court for restoration; and on that motion being granted, it becomes a part of the judgment in the appellate court, and the amount can be collected by execution with the costs (Kennedy v. O'Brien, 2 E. D. Smith, 41).

See ante, p. 360, a.

§ 370. Setting off costs and recovery.

If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the appellate court shall set off the one against the other, and render judgment for the balance.

§ 371. (Am'd 1849, 1851, 1862, 1863, 1864, 1866.) Notice of appeal. Offer to allow judgment to be corrected. Costs on appeal. Set-off of costs.

Costs shall be allowed to the prevailing party in judgments rendered on appeal in all cases, with the following exceptions and limitations: In the notice of appeal, the appellant shall state in

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