Elster v. Goodyear

55 A.D. 190, 66 N.Y.S. 951

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1900
• Status: Published

Opinion

Smith, J.:

The failure to enter the judgment against Goodyear as well as against the Vieles seems to have been an error which was substantial. (Nelson v. Bostwick, 5 Hill, 41; Code Civ. Proc. § 3020.) This was recognized as error by the learned county judge who directed this judgment. But he sought to avoid the same by amending the judgment so as to make it in form against Goodyear as well as against the defendants Viele. For this action of the County Court we can find no authority. By section 3063 of the Code of Civil Procedure the County Court has authority to affirm or reverse the judgment in whole or in part and as to any or all of the parties. Ho authority, however, is anywhere conferred to modify the judgment or to make perfect by amendment a judgment which below was imperfect.

The respondent seeks to justify the judgment of the County Court upon the ground that the notice of appeal purports to have been taken by all of the defendants. But that notice must be read in connection with the judgment from which the appeal is taken, and, inasmuch as that judgment is fairly identified by the notice of appeal, it will be deemed to have been taken simply in behalf of those against whom the judgment was entered. However, even if Goodyear had himself appealed from the judgment, it could not estop the defendants Viele from questioning the judgment which was prejudicial to them, nor, in our judgment, could it give the right to the County Court to exercise an authority in amending the judgment which is not found in the statute. We see no alternative, therefore, other than to reverse the judgment of the County Court and also that of the Justice’s Court.

All concurred.

Judgment of the County Court and of Justice’s Court reversed, with costs in both courts. '