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Figaniere agt. Jackson.

The cause was tried in the court below, before a single justice and a jury; and a verdict having been found for the plaintiff, judgment was entered up by the justice, in manner and form as prescribed by the statute. (1 Rev. Laws of 1813, p. 386, § 123.) From this judgment the defendant appealed to the general term of the marine court, and the general term ordered a new trial, unless the plaintiff should elect to reduce the amount of the judgment. This the plaintiff refused to do. Whereupon one of the justices made an order that the plaintiff make the election, in writing, under the order of the general term, and serve notice thereof upon the defendant within three days after service of notice of the order, which the plaintiff having omitted to do, his complaint was dismissed.

It is insisted that no appeal lay to the general term in the case, and that the order made by it, granting a new trial, with the proceedings subsequent thereto, were void, and that the judgment still remains in full force and effect.

It is claimed that the general term have no power under the act of 1853 (Laws of 1853, p. 165,) to review anything but the decision of a single justice opening a default; but it has been repeatedly held upon motions in this court that such is not the construction of the statute—but that an appeal lies from any judgment rendered by a single justice. An appeal lies, in the language of the statute, from a judgment entered upon the direction of a single justice, “to the general term,” in the same manner, and with the like effect, as appeals in the supreme court from a decision by a single judge “to the general term.”

The meaning of this is very plain. In the supreme court a judgment may be entered upon the decision of a single justice, without a jury, from which an appeal lies directly to the general term, (§ 348,) and when the trial is by a jury, the clerk enters the judgment in conformity with the verdict, unless a different direction is given by the court. (§ 264.) But the statutes organizing the marine court give the clerk no power to enler judgment in conformity with the verdict of the jury. He is authorized to docket or register judgment, but the court must

Figaniere agt. Jackson.

give judgment. (2 Rev. Laws, p. 383, § 110, pp. 387, 123.) The justice before whom the trial is had, with or without a jury, must, in every case, give judgment, and the clerk must docket the judgment in conformity with the entry or minute made by the justice. As every judgment in the marine court is entered upon the direction of the justice who tries the cause, the provision of the statute of 1853, that appeals are to be brought in the same manner, and with the like effect as appeals in the supreme court from the decision of a single justice to the general term, is plain or obvious.

The party appeals from the judgment entered by direction of the justice of the marine court as he would appeal from a judgment entered by direction of a single justice of the supreme court. The mode of procedure in both cases is the same, and as an appeal in the marine court is to have the like effect, the general term of that court has all the powers in reviewing the judgment which the general term of the supreme court would have in the case pointed out. They may order a new trial, or, as respects the appeal and in every stage of it, do whatever the supreme court might do in any case of an appeal from the decision of a single judge of the court to the general term.

The order of the general term was defective in not pointing out within what time the plaintiff should elect. But no time having been named, it was competent, as it would have been in the supreme court, for a single justice to make an order that the plaintiff should elect within a reasonable time, and if he failed to do so, to order that the cause be set down for trial, when, if the plaintiff failed to appear and prosecute the case, judgment of default might have been rendered against him. This, it appears, was not done, but the justice dismissed the complaint upon the plaintiff's refusing to elect. This he had no authority to do. The extent of the decision of the general term was to order a new trial if the plaintiff would not consent to reduce the amount of the judginent. The general term did not order that the complaint should be dismissed if the plaintiff failed to elect whether he would have a new trial or reduce the . judgment; but that the judgment should be reversed, if he did

Wright agt. Delafield and others.

not consent to reduce it to $250, and a new trial ordered. Under that decision, though the plaintiff refused to elect, he was still entitled to have the cause tried over again; of which, it appears, he was deprived by the justice dismissing his complaint, because he refused to elect whether or not he would reduce the amount of the judgment. This, however, does not affect this motion. The cause is yet pending and undetermined, and this motion vacating the transcript of the judgment must be granted.

SUPREME COURT.

Isaac M. Wright agt. JOSEPH DELAFIELD and others.

In all cases, where a single judge, before whom a cause has been heard, has de

liberately pronounced his decision, he has no power to suspend the formal entry and docketing of the judgment, consequent upon such decision, or to deprive the successful party of the benefit, which by the terms of the law the

docket gives him. Where an appeal is desired, and the requisite security to stay execution has been

given, the court may, on proper terms, direct an entry on the docket that the judgment is “ secured on appeal;" and thereupon the lien ceases, and the judgment-debtor is left free to mortgage or dispose of his property till the final de

termination of the case. ($ 281.) And although the lien cannot be prevented without security, a stay of execu

tion may be obtained, either by such security or by the special order of the

judge dispensing with it entirely, or upon terms, in his discretion. (8 349.) In jury trials, but in no other cases, a judge is authorized (§ 265) to direct

“ the judgment in the mean time to be suspended,” or a verdict to be taken “ subject to the opinion of the court at a general term.” And then “the application for judgment must be made at the general term.” (See Taylor agt.

Harlow & Pierson, ante page 285.) A plaintiff has no right to compel the defendants to elect between the suit in

which he is plaintiff, and another suit in which the defendants are plaintiffs against him in reference to the same subject matter. If it is a double vexation, he is chargeable with it as much as the defendants. It is not a case of election. · VOL. XI.

30

Wright agt. Delafield and others.

New-York Special Term, 1854.
APPLICATION by plaintiff for a stay of proceedings, &c.

- for motion,
- opposed.

ROOSEVELT, Justice. This cause was brought to trial before a single judge, without a jury. A decision, as required by the Code, was given, in writing, in favor of the plaintiff, so far as it directed a conveyance of the land to him, and against the plaintiff so far as it directed payment of the purchase money to the defendants. From this decision he wishes to appeal to the general term, and to prevent in the meantime the entry of a judgment, until the appeal shall be disposed of.

Section 267 of the Code contemplates no such suspension. After providing for the time and manner in which “ the decision,” on a trial by the court, shall be given, it declares, without specifying or implying any delay or qualification, that “judgment upon the decision shall—(that is, on the instant), be entered accordingly.” Besides, no appeal can be taken from a mere “ decision.” The chapter providing for appeals “from a single judge to the general term,”—and it is only that chapter which authorizes any appeal-declares that such appeals may be taken “from a judgment entered upon the direction of a single judge.” (§ 318.)

The entry of the judgment, therefore, so far from precluding, is essential to an appeal. And further, to lay a proper foundation for the appeal, “either party,” says the Code, ($ 269,) “may except to a decision, &c., within ten days after notice, in writing, (not of the decision, but) of the judgment;" and, with the same view, either party may call upon the judge, who tried the cause, to give a statement, “ briefly specifying the facts found by him, and his conclusions of law.”

Upon filing the judgment-roll it may be docketed; and when docketed it becomes a lien; and as the roll is to be filed "immediately after entering the judgment,” the lien attaches, in

Wright agt. Delafield and others.

effect, immediately after such entry, and of course before the appeal can be disposed of, or even taken.

The framers of the Code, anticipating this possible evil, have provided, that where the requisite security to stay execution has been given, the court may, on proper terms, direct an entry on the docket, that the judgment is “secured on appeal,” and thereupon the lien ceases, and the judgment-debtor is left free to mortgage or dispose of his property till the final determination of the case. ($ 281.).

And although the lien cannot be prevented without security, a stay of execution may be obtained, either by such security, or by the special order of the judge dispensing with it, if in his opinion such dispensation be just, or prescribing such other terms as he may deem proper. ($ 348.)

The counsel for the plaintiff seems to suppose that the single judge, without entering the judgment, and without a formal appeal, may order the exceptions to be heard at the general term. That practice is entirely confined to jury trials, where the judge is generally compelled to decide in haste, and without much opportunity for examination and reflection. In those cases, but in no others, he is authorized, by § 265, to direct“ the judgment in the meantime to be suspended,” or a verdict to be taken, “subject to the opinion of the court at a general term.” And then “the application for judgment must be made at the general term.”

Thus it will be seen that in all cases where the single judge, before whom the cause has been heard, has had, or is presurned to have had, ample time for discussion and consideration, and has deliberately pronounced his decision, which he at least should assume to be right, he has no power to suspend the formal entry and docketing of the judgment consequent upon such decision, or to deprive the successful party of the benefit which, by the terms of the law, the docket gives hiin.

The order staying proceedings must therefore be discharged.

An application is also made by the plaintiff, Wright, to compel the defendants to elect between this suit, in which he is

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