Johnson v. Yeomans

8 How. Pr. 140

• Court: New York Supreme Court
• Decided: August 15, 1850
• Status: Published

Opinion

Shankland, Justice

Held that § 326, of the Code, forbids any change of the title of the action on appeal, and that the defendant can not in any legal sense of the term be called the plaintiff, so as to compel him to file security on appeal, under the provisions of the Revised Statutes.

He also held, that the action although appealed was the same, and not a new one, and was pending in the same court. That it could not be treated as a new action, as the old action commenced by writ of error, to remove the cause from one court to another, was formerly treated (see Traver vs. Nichols, 7 W. R. 434, and cases there cited). The motion was therefore denied.