Burmester v. O'Brien

151 N.Y.S. 1107

Opinion

PER CURIAM.

The circumstances of the sale of the firm book accounts justified the Special Term in surcharging the defendant’s account with the additional items stated in the decree. The defendant alone has appealed. As plaintiff has not taken any cross-appeal, she cannot urge that we increase the judgment in her favor. Burns v. Burns, 190 N. Y. 211, 215, 82 N. E. 1107; St. John v. Andrews Institute, 192 N. Y. 382, 85 N. E. 143. While the 1912 amendment of Code Civ. Proc. § 1317, gives power to modify, affirm, or reverse in whole or in part, and to make new findings, the root of our jurisdiction is by an appeal by the person aggrieved. As our power is statutory, we cannot dispense with the appeal, which calls into being our power of review. Judgment affirmed, with costs. See, also, 150 N. Y. Supp. 1079.