Forman v. Forman

17 How. Pr. 255 | N.Y. Sup. Ct. | 1859

By the court—Balcom, Justice.

The defendant’s notice of appeal, from the judgment of the justice to the county court, was clearly sufficient, according to decisions heretofore made by this court, at general term, in this district, to authorize a reversal of the judgment of the justice, for any error committed by him, affecting the merits of the case, prejudicial to the defendant. Such decisions show, that, if the notice states a single ground on which the appeal is founded, it confers jurisdiction on the county court to examine the whole case, as set forth in the justice’s return, to see if any error has been committed for which his judgment ought to be reversed. And we think this rule enables the county court to “ give judgment according to the justice of the case, without regard to technical errors and defects,” as section 366 of the Code enjoins. This court has uniformly held this rule in this district since the year 1847 ; and although none of the decisions, which so hold, have been reported, yet we feel bound to follow them, because we believe they are correct, notwithstanding the adverse decisions in other districts which have been published.

If the evidence authorized the justice to allow interest on the account the plaintiff purchased of Blivin, as to which I will express no opinion, it did not make a case for compounding it, which he must have done, or his judgment would not have amounted to $34.74, besides costs. I know of no principle or adjudged case that authorizes the recovery of compound interest in an action at law, unless there has been a promise in writing to pay it, after it could be said to be morally due, or without proof of some peculiar facts, not established in this case. (See Kellogg agt. Hickok, 1 Wend. 521; Jackson agt. Campbell, 5 id. 572 ; Connecticut agt. Jackson, 1 Johns. Ch. R. 13 ; Van Benschooten agt. Lawson, 6 id. 313 ; 5 Paige, 98 ; 9 id. 334; 11 id. 228; Boyer agt. Pack, 2 Denio, 107.) The case of Jackson agt. Campbell is unlike this in many respects, and is no authority for upholding the judgment herein.

The justice erred in holding that the plaintiff was entitled to compound interest on the account he purchased of Blivin, and his judgment, as well as that of the county court, must be reversed with costs.

Decision accordingly»