People ex rel. Figaniere v. Justices of the New York Marine Court

The relator sued Jackson in the Marine Court. The cause was tried before a jury, and verdict given for the plaintiff, upon which judgment was entered by direction of the *241justice before whom (with the jury) it was tried. The defendant appealed to the general term of the court, when a new trial was ordered, unless the plaintiff consented to a reduction of the verdict. Mandamus is now applied for to compel the general term to vacate that judgment, upon the ground that an appeal only lies to the general term of that court from a judgment entered by direction of a single justice opening a default; and further, that no appeal lies to the general term from a judgment entered by direction of a single justice, when the cause has been tried before a jury.

We think that an appeal lies to the general term from any and all judgments entered in that court by direction of a single judge, and that whether the cause was tried with or without a jury.

This power is given by section 5, of chapter 617, of the Laws of 1853.

The language of that section is not as clear as it might have been, and yet its intent cannot be misunderstood. The expression — “ And an appeal may be taken upon the same from a judgment entered upon the direction of a single justice,” &c., refers to an appeal “ in all actions ” not to orders opening defaults. The w'ords above quoted, “ upon the same,” as used in such section, are to be read “ in the same,” and as if that part of the section had read thus: “ And an appeal may be taken in the same,” (that is, in all actions,) “ from a judgment entered upon the direction of a single justice of the said court,” &c. &c.

But it is urged that no appeal will lie when the' cause has been tried before a jury. This section authorizes appeals in all actions, and the appeal is to be taken in the same manner, and with like effect, as appeals in the Supreme Court from the decision of a single judge to the general term.

In this act of 1853, there is no limitation of the power of appeal to any particular class of judgments entered by direction of a single justice, as there is by section 348 of the Code, which limits the appeal, in the Supreme Court, to those cases where the trial is by the court. In the Marine Court, the power of appeal, as conferred by section 5, now cited, is given in all cases, whether tried before a single justice or before a jury, when *242judgment is rendered by direction of a single justice. The manner in which the appeal is to be taken, and the effect such appeal is to have, is by this section to be the same as in the Supreme Court, where the appeal is to the general term from the decision of a single judge. And upon such appeal being taken from the judgment of a single judge in the Marine Court to the general term, the general term of that court may vacate or modify the judgment, under exceptions taken, or as being against the weight of evidence. The court below had power to grant the new trial. The motion for a mandamus must be denied; but as the question was not free from difficulty, and as a construction of the statute was desirable, it will be denied without costs to either party.