Slingerland v. Bronk

47 How. Pr. 408 | N.Y. Sup. Ct. | 1874

By the Court, Manley B. Mattice, Co. J.

This action was brought to recover a penalty against the defendant of fifty dollars for taking and destroying a sheriff’s “ notice of sale ” under an execution.

The defendant did not appear on the trial of cause. The justice rendered judgment against the defendantffor fifty dollars and costs.

The defendant, in his notice of appeal, states “ that improper, illegal and irrelevant ■ evidence was admitted by the said justice on the trial of said cause, on the part of the plaintiff, in the absence of said defendant.”

The notices of sale, posted by the sheriff, one of which was alleged to have been torn down, nor the execution, by virtue of which the levy was made and said notices of sale posted, were offered or introduced in evidence on the trial, but their contents allowed to be given without showing their loss or destruction, or showing the right of plaintiff to give parol testimony.of their contents by notice to produce, or otherwise.

It nowhere appears in evidence that said notice of sale was not taken down by consent of the party suing out such execution, and of the defendant therein.

It is claimed by the respondent that if any errors were committed by the introduction of testimony, or any defect in the testimony given, the appellant’s notice of appeal is not sufficiently specific to justify a review in this court.

It nowhere appears in the notice of appeal that the justice improperly admitted oral testimony of the contents of written instruments, &c., or that the testimony was defective and insufficient in not showing, &c.

All the evidence introduced was necessary testimony for the plaintiff, but the manner of introducing it is all the appellant can complain of.

How, was the notice of appeal sufficiently specific to bring these questions up for review ?

In the case of Delong agt. Brainard (1 N. Y. S. Court, page 1), a very recent case, it is held “ that when the appellant, in his notice of appeal upon the law, assigns as grounds of appeal that the justice erred in allowing incompetent' evidence on the trial,.the judgment is entirely unsupported by the evidence given, &c., on the whole evidence, the plaintiff was not entitled to recover, and that the judgment is contrary to law upon the facts proved,” it is not sufficient to sustain an appeal.

The court at general term (fourth department) says: The return shows numerous objections to the admission of evidence, but none is pointed out in the notice of appeal. That part of the notice of appeal which relates to the admission of evidence is altogether too general to apprise the party or the justice of the specific error which it was claimed had been committed.

The other specifications are also very vague, and amount to little more than saying the judgment is wrong (See Nolan agt. Page, 1 N. Y. S. Court, page 2, Addenda).

The appellant cannot, upon appeal from justice court, upon the law only, insist upon any error not specified in the notice of appeal (Avery agt. Woodbeck, 62 Barb., 557).

The preponderance of authorities appear to be that unless the notice of appeal specify and point out clearly the grounds of error complained of, so that the justice or the adverse party may be fairly apprised of the grounds on which a reversal of the judgment is sought, it will be held to be insufficient to justify a review of the judgment.

In this case the appellant failed in his notice of appeal to specify the evidence claimed to be improper, illegal and irrelevant, or to specify in what particulars the judgment is against the law and evidence in. the case.

The judgment must, for these reasons, be affirmed, with costs.