Hacker v. Ferrill

66 Barb. 559, 1873 N.Y. App. Div. LEXIS 177

• Court: New York Supreme Court
• Decided: April 1, 1873
• Status: Published

Opinion

By the Court,

E. Darwin Smith, J.

This is an appeal from a judgment rendered upon, the report of a referee, in an action pending in the county court of Cayuga county. The case comes here upon a case and exceptions settled by such referee. It does not appear that any motion for a new trial was made in the county court upon said bill of exceptions, or that the decision of the referee on the trial, or in his report, has ever been reviewed in the county court. Section 344 of the Code gives appeals from judgments rendered in the county court, but I think it never was intended to give such review upon cases and judgments not rendered or reviewed and affirmed by the county court. This court has held that motions for new trials must be first made and decided in the county court, before it will entertain an appeal to review the decisions of such court.

[Fourth Department, General Term, at Rochester, April 1, 1873.

This decision applies, I think, in principle, to judgments rendered by referees in that court, as well as to judgments rendered by the court itself.

The appeal in this case should, for this reason, be dismissed, with costs of the appeal.

Appeal dismissed:

Mullin, Talcott and E. D. Smith, Justices.]