McIlhenny v. Wasson

1 Daly 285

• Court: New York Court of Common Pleas
• Decided: January 15, 1863
• Status: Published

Opinion

By the Court.

Hilton, J.

The simple question presented to us for determination upon this appeal, is, whether under the provisions of Chap. 5 of Title 11, of the Code as amended April 23, 1862, a new trial must be had in this Court in all cases of appeal from the Marine and District Courts where there has been an issue joined and the amount involved exceeds fifty dollars.

Section 352 of the title referred to, and upon the construction of which this question depends, as amended is in substance as follows.

"When a judgment has been rendered by the General Term of the Marine Court, or by a Justice of the District or Justices’ Courts of this city, the appeal shall be to this Court, and the appeal from the Marine Court must, like that from the District Courts, be taken within twenty days after the judgment. In the city of Buffalo the appeals from the Courts of Justice of that city must be to the Superior* Court therein.

When the judgment has been rendered by any of the other Courts enumerated in the preceding. section (351), that is, Justices’ Courts of other cities than New York and Buffalo, the Municipal Court of the city of Brooklyn and Courts of Justices of the Peace throughout the State, the appeal must be to the County Court of the County. And on such appeals, where issue has been joined and the amount involved exceeds fifty dollars, a new trial shall be had in such County Court.

It seems to us quite plain that the expression “such appeal” in the connection in which it is used in this section, refers to the appeal which is required to be taken to the County Court, eo nomine ; and has no relation to the appeals which must be taken to this Court, and to the Superior Court of the city of Buffalo.

The remaining sections of the title, which were amended at the same time, are in no sense repugnant to this construction, but on the contrary fully harmonize with it.

Therefore in all appeals to this Court from the Marine and District Courts, the former practice still prevails unaffected by amendments of 1862, except so far as the costs therein are regulated by the amendment to section 371.

Judgment affirmed.