The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-12-27

fespOHo eWs--W OOUhuFF, Js-Dy The act OF 1905,
(sess Laws, p. ll66, section 81 relating TO the Ma
rine Court appeal to the General Term is author
lied from judgment entered by the direction Of
single jSsce Of the said court in the same manner
and with the like effect as appeals in the Supreme
Court from the decision Of single Judge to the
general term. Although the previous portion Of
the section relates to- and gives power to open, de-
faults, and the whole section ia, in it's frame and
phraseology liable to some criticism, as wanting in
clearness' and perspicuity, think the nearing ig
Ineligible and / entirely concur with the Judge
st special term that the right Of appeal given by
the statute is not confrcd to Judgments by default
This opinion has heretofore been expressed in this
curt. and am informed that the general term Of
the Supreme Court in this district have given to
his section the same construction. What, then is
the effect Of an appeal to the general term Of the
Supreme Court? Section 3i8 OF the Code declares
relation to that court that an appeal upon the
aw may be taken from q Judgment entered upon
The report Of referees on the direction OF single
Judge of the same court in all cases; and upon
he fact, when the trial Is by the court OF refe-
ees. Under this section it seems to me very clear
hat when cause is tried by the court or by re.
ferees the effect of an appeal - to bring ander re.
view by the general term questions OF law and fact
both, and that term has thereby Jurisdiction to re-
verse for error In either. But unless the is
tried by the court, or by referees, an appeal only
lies upon the law, and The general term have no jul
risdicton fox any purpose except TO review the
questions OF law arising on the trial, appearing
the record its out-branchcs. II is obvious thai
judgments, !" entered by direction Of single Judge
must in this section include judgments entered upon
the verdict of jury for otherwise no appeal what
ever would lie from such Judgments. They are
not provided for al all, unless 40 included. Al
though IL is true that the clerk is directed by the
Code to enter Judgment according TO the verdict,
yet his act IL purely ministerial; that duty is
made in rerms subject to the direction of tho
Judge, and is done 10 every practical sense under
term in the Marine Court have by the statute the
same eject. When tho cagc is tried by the court,
the appeal hes npon the law and the facts and the
general term has power to review his finding
upon either or both. Ard when the case is tried
by jury, an appeal lies upon the law, and brings
questions OF law under review, and nothing else.
Notions for new trial Ia the Supreme Court, az
also in tho Common Pleas, on the ground that ver
dct Is against evidence, that the damages are
excessive and the like, where the trial Is before
jury, are not originally cognizable by the general
term. They are regularly and proper t 3e At
special term and before judgment, Mia i4ue
dction OF the general term over socl .oas il
on,nea By appeal from the !; order ,s eH
and not BY an appeal from the judgmenr. There is
nothing in the statute above referred eiating 10
the Marine Court nor so tar as have been able 10
discover in any other statute, giving chat Court
power either Of general term or before single:
Judge to entertain motion for new trial such,
TO review the finding OF the jury upon the facts
and set aside either 81 against evidence or because
the Court deem the damages excessive. II, there
fore, it could be made to appear that the appeal
taken to the general term OF the Marine Court,
after the verdict Of the jury and judgment thereon,
was mere appeal lpon the facts, and was enter
tanned by the general term a review Of the find
ing OF the jury upon the evidence without any error
OF law having occurred ION the trial, and that the
decision on the appeal was exercise OF supposed
authority to set aside verdict as against evidence.
or on the ground that the damages were excessive.
should say without hesitation that the general
term of the Court had no Jurisdiction Of any such
question, and no power over The Judgment FOR any
such purpose; and therefore that we onght not to
order transcript OF the judgn ert to he set aside
by reason Of any such oier Of that court. It may
he that in order 10 avoid The effect of such an order
upon the docket Of the Judgment in that court and
obtain an execution, then the plaintiff would be
compelled to resort to tie supervisory power of the
Supreme Cont by maniamns, but Il It clearly APP
Ieared that the order Of The general term with
out jurisdiction, ought not to set aside The trans
crjpt, but should permit the plaintiff to take such
benefit OF The transcript and docket with the Clerk
rights under it as the statutes have given him, with
ont interference part to stay his proceedings.
The plaintiff here insists that the order Of the gene
raj tenn was wholly without Jurisdictions; tho
views above presented tend to snstain that propo.
sition, it the facts assumed by the appel
lants counsel but the only evidence that the appeal
brought TO the general term, and entertained by
them the basis OF their order Of reversal and for
new trial is an affidavit that EXCEPTIONS were
taken the TRIAL to the rulings of the Justice,
to his charge to the jury. This Is not enough-it
was never intended that the formal and technical
rules governing the practice in the higher courts
should be applied in srictncss to that court. The
proceedings on trial there informal, the plead
ings ora they have in technical strctness no judg
rnent roll. Their Judgment record Is Justices
docket There liz, then, no bill Of exceptions. have
therefore, no doubt that appeal from the judg
ment upon the law as decided by the Judge on the
trial, Or as contained in hs Instructions TO the jury
II THE general term found errors in law had beea
committed, i was within their power, and in ae-
co,danee with tier duty 10 reverse the judgment
and order new trial The condition which was an
nexed would seem, in some degree, to indicate that
they deemed the damages excessye; but this is not
the Necessary conclusive infeYence--it IL Dos.
sibIe that they fond that an error of law was con
mtied IN respect 10 some particular ground sub
| iect OF recovery, the extent Of which they could
measure, 30 that injustice could happen to the
defendant by affirming the Judgment for the re-
duced amount ii the plaintiff elected II the con-
dtion annexed to the reversal was founded in this
idea, the plaintiff not injured thereby for he is not
nonnd 10 accept OF the condition rendered 10 him.
! Without pursuing this branch Of the inquiry fur.
Their, il must suffice to say that the mere affidavit
presented W TIE plaintiff on this motion s not saf-
fcient 10 show that the appeal in question was not
an appeal upon the law, OF which the general term
OF the Marine Court had arisdictioD aud we cannot
upon the papers before rs say that their order Of
yofsa was moi within their power and authority.
But UPON another ground i seems TO me that the
plaintiff objection TO the jurisdiction OF that Court
to reverse their judgment must be sustained Neither
the Supreme Court, nor the Marine Court lin which
latter appeals have greater oifect) have power to
authorize an appeal 70 be taken to the general
tenn auac pro fnnc, after the thirty days limited
by the statute have passed Code sec. 1872, 40j;
Renoid vs.. Harris, Sand H., GAL; Powell W. Nc
Cormck, Pr. r., 331 Ellis vs. Thomas, H. 6, 36l.l
They cannot do this directly nor indirectly. (Hum.
phroy vs. Chamberlain, Herman, 274) No appeal
was taken in this until more than sixty days
after Judgment, and the defendant had notice OF
such Judgment, cs u appears by the papers,
rr0 ffrnI
time to make case. AID stayed the plaintiff pro-
eeed;ngs. The right ofappeal was, think, gone
and the jurisdiction 81 the general term 10 review
the Judgment failed by the lapse OF the thirty days
For This reason think thai tho order OF the gene
raj term was void, and Old not enttlc the defendant
to have the transcript fled with the county clerk
and the docket there vacated. For this reason !
think tie order Mt special term should be reversed