Skurnick v. Kaletsky

143 A.D. 670, 128 N.Y.S. 71, 1911 N.Y. App. Div. LEXIS 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1911
• Status: Published

Opinion

Spring, J.:

The plaintiff, a sub-contractor, commenced this action in the Municipal Court of the city of Syracuse against the owner to foreclose two mechanic’s liens. The defendant had engaged one Bobinsliy to rebuild a dwelling house for her. The contractor sublet a part of the work to the plaintiff, who partly performed his contract and abandoned it for the reason that no money was paid to him. Subsequently, as lie claims, the defendant employed him to finish the work he had undertaken and agreed to pay him the full contract price when the work was completed. The plaintiff thereupon, and in reliance upon this agreement, completed the work and sued for and has recovered the entire sum earned.

The court charged the jury that as there was no separation in the proof of the value of the part of the job done prior to the abandonment and that performed subsequent thereto, the plaintiff must recover the full contract price or nothing, and there was no exception to this instruction.

The clerk’s minutes show that a motion for a new trial was made in the Municipal Court on all the grounds specified in section 999 of the Code of Civil Procedure, but what disposition, if any, was made of the motion does not appear. The defendant appealed to the County Court from the judgment only, and that court granted a new trial solely on the ground that the verdict was against the weight of the evidence. In fact, there are no exceptions in the record calling for a reversal of the judgment, and the plaintiff proved sufficient certainly to make a prima facie case.

I think the County Court exceeded its power in granting a new trial on the ground stated.

The Municipal Court Act of the city of Syracuse (Laws of 1906, chap. 520)

* in its general features of procedure is modeled after the practice which obtains in Justices’ Courts, “ except as herein otherwise provided.” (Laws of 1906, chap. 520, § 13.) By section 16 the judge before whom a trial is had possesses the authority to grant a new trial in pursuance of section 999 of the Code of Civil Procedure. By section 32 an appeal may be had to the County Court of Onondaga county from the judgment of the Municipal Court, “ provided, however, that where the judgment was rendered upon a trial by the court without a jury, the appeal may be taken upon questions of law, or upon the facts, or upon both; and where the judgment was rendered upon the verdict of a jury, the appeal may be taken upon questions of law only. Appeals may also be had to the same court from an order granting or denying a motion for a new trial.”

The last two provisions do not pertain to the practice governing on appeals from Justices’ Courts, and come within the exception “ otherwise provided ” by section 13. The practice conforms to that which regulates appeals in actions commenced in the Supreme Court. In this case the judgment is upon the verdict of a jury. The appeal is from the judgment only and, consequently, is “ taken upon questions of law only,” and the facts cannot be reviewed.

If the citation of authorities is proper in support of this well-settled proposition, I refer to the following: Collier v. Collins (172 N. Y. 99); Walbridge v. James (4 Hun, 793); Rogers v. King (66 Barb. 495); Thurber v. Harlem B., M. & F. R. R. Co. (60 N. Y. 326).

. The judgment should be reversed.

All concurred.

Judgment of County Court reversed, and judgment of Municipal Court affirmed, with costs in all the courts to appellant.

Since amd. by Laws of 1910, chap. 265.— [Rep,