Snyder v. Beyer

3 E.D. Smith 235 | New York Court of Common Pleas | 1854

By the Court. Woodruff, J.

The declaration of the court at special term, which is made in the form of an order, is a mere opinion. It directs nothing, and it adjudges nothing to either party; it only declares that “ the plaintiffs are entitled to their costs,” but it does not award costs. There was no judgment or order, therefore, to be executed, and there is no operative determination to be affirmed or reversed. If we should declare our opinion in general term to coincide with that declared below, and clothe that opinion in the form of words of affirmance, it would effect nothing, because until the opinion of the court is put in the form of an award or allowance, it neither benefits the plaintiffs nor does any prejudice to the defendant. If we should make the opposite declaration, and so express the opinion in the form of a reversal, it would in like manner be inoperative.

The appellant has mistaken his course of proceeding, and the respondents erred no less when they procured such an order.

When costs shall be awarded to the plaintiffs, it will be time enough to appeal. So long as the matter rests in opinion, we have nothing before us to affirm or reverse.

Besides, there is nothing submitted on the appeal except the pleadings. They show that this was an action for waste, to which all the provisions of the Revised Statutes relating to the action for waste apply, although the form of the action is changed. (Code, §§ 450, 451, etc.)

With nothing but the pleadings before us, we can have no hesitation in saying that the issues joined upon these pleadings could not be tried before a justice’s court. The pleadings, on their face, involve the determination of the title to the premises, the recovery whereof is sought by the complaint.

What took place on the trial does not appear in any manner, except so far as it is disclosed by the points made by the counsel. We do not, in general, deem it safe to determine an appeal upon the statements made in argument without having the facts before us, unless we are quite certain that counsel agree upon the facts.

But if we were to act upon what seems to be conceded by both counsel, and assume that the only recovery had in the cause was for damages less than $50, and were also to intimate our views of the question which appears to have been raised below, notwithstanding there is no order which can be the proper subject of appeal, we are of the opinion that the action of waste, where forfeiture is alleged and a recovery of possession is sought, as well under the Code as before the Code, does in its very nature involve the question of title to real property, so that the justices’ courts have no jurisdiction. It is not, however, necessary to pursue the subject, for the reasons above given.

The appeal should be dismissed without costs, and if the plaintiffs see fit, they may apply to the judge who tried the cause for his certificate that the title to real estate came in question, and such application can be made mono fro tunc. If the appellant desires to review the question on an appeal from the judgment, such a certificate may be important to the plaintiffs, unless the court on appeal should be satisfied that the question of title was raised by the pleadings.

Appeal dismissed, without costs.