
    COURT OF APPEALS.
    Frederick Zoeller, appellant, agt. Julia A. Riley, administratrix, respondent.
    Practice—Appeal— Oode of Oivil Procedure, section 191 — Matter in controversy within the meaning of this section.
    
    Where the action is not founded upon contract the sum. for which the complaint demands judgment is deemed to be the amount of the “ matter in controversy ” within the meaning of section 191 of the Code of Civil Procedure, which prohibits an appeal when the matter in controversy is less than §500.
    
      Decided March, 24, 1885.
    Motion to dismiss appeal from judgment of the general term of the city court of Brooklyn affirming judgment of trial term dismissing plaintiffs complaint. The action was brought for the conversion of a carriage alleged to be worth $500, for which sum the complaint demanded judgment. On the trial the only evidence as to value was that the carriage was worth about $300. The complaint was dismissed and plaintiff appealed. On the motion it was claimed by respondent that the matter in controversy was the value of the chattel as disclosed by the motion, and as that was less than $500, the judgment was not appealable to the court of appeals. Appellant claimed that the value of the chattel as alleged in the complaint, and for which judgment was demanded, was the matter in controversy within section 191, subdivision 3, of the Oode of Oivil Procedure, and that the testimony on the trial could not be considered in fixing the matter in controversy. The court held with appellant, and handed down the following opinion, in which all the judges concur.
    
      Thomas E. Pearsall, for motion.
    
      James D. Bell, opposed.
   Pee Curiam.

— This action is not founded upon contract, and hence the sum for which the complaint demands judgment is deemed to be the amount of the matter in controversy within the meaning of section 191 of the Code. Here the complaint demands judgment for $500. It matters not that proof given upon the trial shows that the plaintiffs damages were less. If he can succeed upon his appeal upon a new trial it will be open to him to show that this property was worth $500 or more, if he can.

The motion must be denied, with ten dollars costs.  