James, J.
In the decision of the present motion, we have nothing to do with the merits of the original appeal. The judgment of the justice having been reversed, it is to be deemed as properly reversed for all the purposes of determining this question of costs. The important question presented by this appeal is, whether the first paragraph of section 371 of the Code has application when an appeal from a justice’s judgment is brought solely for the purpose of reversing the same, and not for its modification, or for being made more favorable to the appellant. Before the Code, justices’ judgments of $25 and under, could only be reviewed on certiorari, and were heard on the returfi; judgments for over that sum were brought up by appeal, a new trial allowed, and if the damages below were reduced $10, the appellant had costs, even though the respondent had a verdict. This practice was abolished by the Code, and in all cases appeals from justices’ judgments were heard on the return. The amendments to chapter 5, title IT, of the Code in 1862, in a measure revived the old practice, so far as to allow a new trial when the claim of either party litigated below exceeded $50, and regulated the question of costs by the provisions of the first paragraph of section 371, in case the jury on the second trial rendered a verdict more favorable to the appellant than tl e recovery below.
The notice necessary to perfect the appeal (§ 353), is not changed by the amendments of 1862, neither is section 368, as to who shall have costs if the judgment below be [173] affirmed or reversed. Section 371 requires a statement of particulars in the notice of appeal only when the appellant claims the judgment below should have been more favorable to him, not when a reversal alone is sought (Wynkoop agt. Hulbert, 25 How. 158). In appeals, where the judgment below is affirmed or reversed, the successful party is entitled to costs under section 368 ; the question of costs in such cases not being affected by the first paragraph of section 371. Does said part first of section 371, apply to appeals where a new trial is not allowed ? It has been repeatedly held that the county court on appeal had no authority to review the evidence given before the justice, and to reverse, affirm or modify the judgment on questions of fact arising from such evidence, or to reverse in part a judgment rendered for entire damages, notwithstanding the appellate court (§ 366) is authorized “ to give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits ; to affirm or reverse the judgment below in whole or in part, and as to any or all of the parties; and for errors of law or fact.” (Kasson agt. Mills, 8 How. 377; Adsit agt. Wilson, 7 How. 68 ; Hardy agt. Steele, 3 Abb. 103 ; Fanning agt. Lent, 3 E. D. Smith, 206.) Upon this rule of construction it would be of no benefit to the appellant to state, or loss to omit to state in his notice of appeal, the particulars wherein he claimed the judgment should have been more favorable to him, unless it might be as a prick to the conscience of the respondent, because the court having no power to modify the judgment, could not punish the omission with costs. Recent decisions, • however, indicate a disposition to follow more closely the letter and spirit of the Code (Staats agt. Hudson River Railroad Co. 23 How. 463 ; S. C. 39 Barb. 298 ; Becker agt. Hassel, 26 How. 328), and if the rule of construction stated in these cases be adhered to, then the provisions of section 371 become as im[174] portant in one class of appeals as the other, in cases where a modification is sought.
It is important .that the profession ^should understand clearly the particularity of statement required by section 371. In Fox agt. Nellis (25 How. 144), it is said: “ It is a sufficient compliance with the requirements of section. 371, to say that the judgment below is for too large a sum; that it could never have been intended that a specific sum should be named; that the section does not demand it; if named it would be surplusage, where the particular has been sufficiently noted, to wit, that the judgment is for too large an amount, the prevailing party is put to the responsibility of saying how much he will reduce it, not the appellant to say how much he demands to have it reduced.” In Forsyth agt. Ferguson (27 How. 69), the court says : “ The notice should indicate clearly to the respondent the particular or particulars in which the judgment should be modified. It is solely for his consideration and action, upon the theory that' the further litigation of the matter may be thus arrested. The statute should be so construed as to render it a valuable and practicable improvement, as the legislature designed it to be. It-then affords the parties an opportunity to deliberately examine their controversy after one trial and determination of it, and before they enter upon another. To secure this result the appellant should do something more than to allege general grounds of error affecting the entire judgment. The terms used in the law, as well as the objects to be. attained in its alteration require it. He must specify, separate or distinguish in a tangible form, so that the respondent may comprehend the precise change in the judgment to which he is willing to consent. Terms of a general nature are not sufficient. The proceedings will then be plain, intelligible and valuable, affording facilities for the correction of errors, mistakes and misapprehensions, without the intervention and expense of an appellate court.”
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James, J.
In the decision of the present motion, we have nothing to do with the merits of the original appeal. The judgment of the justice having been reversed, it is to be deemed as properly reversed for all the purposes of determining this question of costs. The important question presented by this appeal is, whether the first paragraph of section 371 of the Code has application when an appeal from a justice’s judgment is brought solely for the purpose of reversing the same, and not for its modification, or for being made more favorable to the appellant. Before the Code, justices’ judgments of $25 and under, could only be reviewed on certiorari, and were heard on the returfi; judgments for over that sum were brought up by appeal, a new trial allowed, and if the damages below were reduced $10, the appellant had costs, even though the respondent had a verdict. This practice was abolished by the Code, and in all cases appeals from justices’ judgments were heard on the return. The amendments to chapter 5, title IT, of the Code in 1862, in a measure revived the old practice, so far as to allow a new trial when the claim of either party litigated below exceeded $50, and regulated the question of costs by the provisions of the first paragraph of section 371, in case the jury on the second trial rendered a verdict more favorable to the appellant than tl e recovery below.
The notice necessary to perfect the appeal (§ 353), is not changed by the amendments of 1862, neither is section 368, as to who shall have costs if the judgment below be [173] affirmed or reversed. Section 371 requires a statement of particulars in the notice of appeal only when the appellant claims the judgment below should have been more favorable to him, not when a reversal alone is sought (Wynkoop agt. Hulbert, 25 How. 158). In appeals, where the judgment below is affirmed or reversed, the successful party is entitled to costs under section 368 ; the question of costs in such cases not being affected by the first paragraph of section 371. Does said part first of section 371, apply to appeals where a new trial is not allowed ? It has been repeatedly held that the county court on appeal had no authority to review the evidence given before the justice, and to reverse, affirm or modify the judgment on questions of fact arising from such evidence, or to reverse in part a judgment rendered for entire damages, notwithstanding the appellate court (§ 366) is authorized “ to give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits ; to affirm or reverse the judgment below in whole or in part, and as to any or all of the parties; and for errors of law or fact.” (Kasson agt. Mills, 8 How. 377; Adsit agt. Wilson, 7 How. 68 ; Hardy agt. Steele, 3 Abb. 103 ; Fanning agt. Lent, 3 E. D. Smith, 206.) Upon this rule of construction it would be of no benefit to the appellant to state, or loss to omit to state in his notice of appeal, the particulars wherein he claimed the judgment should have been more favorable to him, unless it might be as a prick to the conscience of the respondent, because the court having no power to modify the judgment, could not punish the omission with costs. Recent decisions, • however, indicate a disposition to follow more closely the letter and spirit of the Code (Staats agt. Hudson River Railroad Co. 23 How. 463 ; S. C. 39 Barb. 298 ; Becker agt. Hassel, 26 How. 328), and if the rule of construction stated in these cases be adhered to, then the provisions of section 371 become as im[174] portant in one class of appeals as the other, in cases where a modification is sought.
It is important .that the profession ^should understand clearly the particularity of statement required by section 371. In Fox agt. Nellis (25 How. 144), it is said: “ It is a sufficient compliance with the requirements of section. 371, to say that the judgment below is for too large a sum; that it could never have been intended that a specific sum should be named; that the section does not demand it; if named it would be surplusage, where the particular has been sufficiently noted, to wit, that the judgment is for too large an amount, the prevailing party is put to the responsibility of saying how much he will reduce it, not the appellant to say how much he demands to have it reduced.” In Forsyth agt. Ferguson (27 How. 69), the court says : “ The notice should indicate clearly to the respondent the particular or particulars in which the judgment should be modified. It is solely for his consideration and action, upon the theory that' the further litigation of the matter may be thus arrested. The statute should be so construed as to render it a valuable and practicable improvement, as the legislature designed it to be. It-then affords the parties an opportunity to deliberately examine their controversy after one trial and determination of it, and before they enter upon another. To secure this result the appellant should do something more than to allege general grounds of error affecting the entire judgment. The terms used in the law, as well as the objects to be. attained in its alteration require it. He must specify, separate or distinguish in a tangible form, so that the respondent may comprehend the precise change in the judgment to which he is willing to consent. Terms of a general nature are not sufficient. The proceedings will then be plain, intelligible and valuable, affording facilities for the correction of errors, mistakes and misapprehensions, without the intervention and expense of an appellate court.”
[175] This exposition of the statute seems to me correct, and clearly demonstrates that the learned judge in Fox, agt. Nellis [supra), was wrong in holding that terms of a general nature were sufficient. The theory of the amendment to the 5th chapter of the 11th title is this : If a party feels aggrieved by a judgment of a justice, he may appeal; if bis whole ground of complaint is that the judgment is erroneous, and should be reversed, his case falls under sections 353 and 368 ; but if he claims that the judgment for any reason should be made more favorable to him, he must point out in his notice of appeal in what particular. This should be plain, clear and specific, so that the respondent may know precisely and exactly what is meant or demanded. In this case, for instance, had the appellant desired to rely upon a modification of the judgment, as well as a reversal, he should have stated in his notice that he claimed the same should be made more favorable to him, or that the damages were too large in this ; that the unpaid purchase money and interest should have been deducted from the damages, or keeping of the cow (specifying the sum), it being an unliquidated demand; and not having done so, had the judgment been modified instead of being reversed, he would have been subjected to the costs. And in any case, if a judgment is modified for a cause not stated in the notice of appeal, it should be with costs to the appellant. If the notice of appeal contains the requisite statement of particulars, it is optional with the respondent to offer to have the judgment below amended. He may disregard the statement, he may offer to adopt it, or he may make a greater or less offer. If the judgment be modified in any of the particulars specified, and no offer has been made by the respondent, the appellant recovers costs ; or if an offer be made less than that specified in the notice, and it is not accepted, the appellant has costs, if he obtains in the appellate court a more favorable judgment than that offered. But if the respondent’s offer be to com[176] ply with the modifications demanded, and it is not accepted, and the judgment be modified by the appellate court in accordance with such offer, the appellant would not be entitled to costs. The respondent is entitled to costs in all cases when the appellant is not (§ 371). In this case no statement was made as required by section 371; no modification of the judgment below was asked for or obtained. The appeal was from the entire judgment as erroneous. The grounds were stated in the notice of appeal as required by section 353, and the judgment below having been reversed, the appellant was-entitled to costs (§ 368).
The order appealed from should be affirmed, with $10 costs and disbursements.