Opinion
Submitted December 14, 1877
Decided January 15, 1878
Henry A. Foster, for appellant.
Levi H. Brown, for respondent.
The judgment appealed from was entered for $533.84 damages, and $107.49 costs and disbursements. An item of $140.50 entered into the amount of $533.84 damages, for which the judgment was entered. As to that item of $140.50, no contest has been made by the defendant since the jury rendered their verdict. The only controversy between the parties since then has been as to the sum of $393.34, the other part of the judgment. This, as is seen at once, does not amount to $500, though the judgment does.
According to our rulings, made under the act of 1874 (chap. 322), the judgment is not appealable, and we have no jurisdiction to review it. By those rulings, if the amount in controversy, exclusive of costs, is less than $500, an appeal does not lie, whatever may be the amount at which the judgment is docketed. ( Pennie v. Life Ins. Co., 67 N.Y., 278; Roosevelt v. Linkert, 67 N.Y., 447.) It is true that the answer raised an issue as to the item of $140.50, also, and that that item was in controversy at the Circuit, up to the submission of the case to the jury. In Pennie v. Life Ins. Co., we speak of the controversy as it was at Circuit. Here we deal with the controversy as it was after the Circuit. But the result is the same. The appeal to this court is from the judgment of the General Term, and what was the amount in controversy there and as to which an appeal is sought, is the criterion of the jurisdiction of this court. As is said in King v. Galvin ( 62 N Y, 238): "It is evident that the amount claimed in the complaint is no longer any guide for ascertaining the amount in controversy in the action." "In case of a new trial, all" the defendant could possibly reduce the claim of the plaintiff would be the residue of the judgment, which was less than $500, and that is all that is now in controversy.
The appeal should be dismissed.
All concur.
Appeal dismissed.