Burmester v. O'Brien

The circumstances of the sale of the firm book accounts justified the Special Term in surcharging the defendant’s account with the additional items stated in the decree. The defendant alone has- appealed. As plaintiff has not taken any cross-appeal, she cannot urge that we increase the judgment in her favor. (Burns v. Burns, 190 N. Y. 211, 215; St. John v. Andrews Institute, 192 id. 382.) While the 1912 amendment of Code of Civil Procedure, section 1317,* gives power to modify, affirm or reverse in whole or in part, and to make new findings, the root of our jurisdiction is by an appeal by the person aggrieved. As our power is statutory, we cannot dispense with the appeal which calls into being our power of review. Judgment affirmed, with costs. Jenks, P. J., Burr, Stapleton, Rich and Putnam, JJ., concurred.