9 Daly 482 | New York Court of Common Pleas | 1881
This is a motion to amend a remittitur sent from this court to the marine court. In the marine court in an action at law a money judgment only was entered in favor of the plaintiff. The plaintiff appealed from so much of said judgment as denied to the plaintiff the right to recover a greater or larger sum than that therein specified. Said judgment appears to have been affirmed by the general term of the marine Qourt, and a like appeal was taken by the plaintiff to the general term of this court. Upon the argument of the last mentioned appeal this court rendered judgment reversing the judgment appealed from, and ordered a new trial, with costs to abide the event. The remittitur conforms to the judgment of this court, and the only question seems to be whether upon such an appeal this court should have reversed the judgment.
The appellant relies upon sections 1300 and 1317 of the Code to support his position upon this lhotion and cites several authorities.
An examination of those authorities shows that each of those cases was an action in equity, and not an action at law. In an action at law the provision of the Code that a party may appeal from a specific portion of the judgment can have no application, because the judgment is but, one portion, namely, the amount which is recovered.
In an action in equity there may be and often are many separate and independent provisions contained in the judgment, and a party may appeal from any distinct and separate provision without appealing from the whole judgment; but in an action at law there are no such separate and distinct provisions, and consequently the party must necessarily appeal from the only provision in the judgment, which is that the plaintiff or defendant, as the case may be, recover so much money of the
The motion to amend the remittitur must therefore be denied, with $10 costs.
Motion denied, with $10 costs.