Toher v. Schaefer

Appellate Terms of the Supreme Court of New York

Toher v. Schaefer

92 N.Y.S. 795

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 21, 1905

StatusPublished

Cited by1 cases

This text of 92 N.Y.S. 795 (Toher v. Schaefer) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Toher v. Schaefer, 92 N.Y.S. 795 (N.Y. Ct. App. 1905).

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Opinion

PER CURIAM.

The order appealed from is not one of those enumerated in sections .253, 254, 255, or 256 .of the Municipal Court act (Laws 1902, pp. 1562, 1563, c. 580), and is therefore not appeal-able to this court. Spiegelman v. Union Ry. Co., 95 App. Div. 92, 88 N. Y. Supp. 478; Cohen v. Ridgewood Shirt Co. (Sup.) 84 N. Y. Supp. 188; White v. Lawyers’ Surety Co. (Sup.) 84 N. Y. Supp. 247.

While we have not jurisdiction to entertain this appeal, we deem it proper, nevertheless, to point out that under section 335, p. 1588, of the Municipal Court act, a justice of the Municipal Court can in no event impose a greater sum than $10 as a condition for allowing an amendment to a pleading. It may be that such costs will often appear to be inadequate, especially in a case that has been appealed and comes back for a new trial, but the remedy can be found only in an amendment of the act removing the limitation upon the judicial discretion in that regard. Plaintiff’s immediate remedy for the grievance of which he complains is to apply to the justice in the Municipal Court for a reargument of the motion as to the terms of the amendment.

Appeal dismissed, with $10 costs.

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PER CURIAM.

The order appealed from is not one of those enumerated in sections .253, 254, 255, or 256 .of the Municipal Court act (Laws 1902, pp. 1562, 1563, c. 580), and is therefore not appeal-able to this court. Spiegelman v. Union Ry. Co., 95 App. Div. 92, 88 N. Y. Supp. 478; Cohen v. Ridgewood Shirt Co. (Sup.) 84 N. Y. Supp. 188; White v. Lawyers’ Surety Co. (Sup.) 84 N. Y. Supp. 247.

While we have not jurisdiction to entertain this appeal, we deem it proper, nevertheless, to point out that under section 335, p. 1588, of the Municipal Court act, a justice of the Municipal Court can in no event impose a greater sum than $10 as a condition for allowing an amendment to a pleading. It may be that such costs will often appear to be inadequate, especially in a case that has been appealed and comes back for a new trial, but the remedy can be found only in an amendment of the act removing the limitation upon the judicial discretion in that regard. Plaintiff’s immediate remedy for the grievance of which he complains is to apply to the justice in the Municipal Court for a reargument of the motion as to the terms of the amendment.

Appeal dismissed, with $10 costs.

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Bluebook (online)

92 N.Y.S. 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toher-v-schaefer-nyappterm-1905.

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