
    Bixby vs. Worden.
    The rule laid down in Ymnghame v. Pingar, (il W. Y. 99, and 63 Barb, 269,) applies to the notice in an appeal from a justice’s court for a new trial, and is not confined to an appeal upon questions of law only.
    THIS case came before the court upon a re-argument, allowed upon motion made for that purpose, at a former term.
    The case is an appeal from an order of the county court of Cortland county, denying a motion made by the defendant therein to strike out the costs in the case, allowed to the plaintiff by the clerk, on an adjustment, and to allow costs of the appeal from the justice’s court to the county court to the defendant. The motion was denied by the county court, and an appeal taken, to this court in the 6th District, where the order of the county court was affirmed. A motion was then made to the court, in the 3d Department, for a re-argument of the case, which motion was granted, and the case was before the court for re-argument, upon the merits.
    The action in the justice’s court was trover, for a horse, and there was a recovery by the plaintiff, for $100. The notice of appeal from the justice was as follows:
    “ The judgment should have been more favorable to the defendant in this, to wit: It should not have been for a larger amount than ten dollars. It should have been for the defendant, and for his costs; it was too large a judgment. This appeal is brought for a new trial in the county court.”
    On the trial in the justice’s court, the plaintiff recovered $83.88. The plaintiff made no offer to correct the judgment.
    
      0. Porter, for the plaintiff, respondent.
    
      H. Ballard, for the defendant, appellant.
   By the Court,

P. Potter, J.

The recovery in the justice’s court exceeded $50. The appeal, as was specified in the notice, was for a new trial, and the case was tried in the county court upon the issues joined before the justice, by a jury. Both parties tried it as an issue of fact; and the only question in the case is, which party is entitled to costs in the action. Besides the mat-' ters set forth in the notice, above, it was also stated “ that the verdict was against evidence;” and also “that the verdict is against the law of the case.” These two grounds have no influence upon the question of costs, under section 371 of - the Code. They require, not that the judgment rendered be reduced, but that there be a different judgment; they do not specify in what particular the judgment should be jpore favorable to the appellant. Except for the other grounds specified in the notice, the provisions of section 371 would not apply to the case. Such notices may be sufficient under the .provisions of section 353, to give the county court jurisdiction of the case; but the defendant, under them, would only recover costs in the contingency of having judgment entirely in his favor, in the county court.

This case, as it is now before us, must depend upon the sufficiency of that part of the notice which states, “The judgment should have been more favorable to the defendant in this, to wit: it should not have been for a larger amount than ten dollars.” It is in this particular, viz: the amount of the judgment, which the defendant claims should be more favorable to him, that the question arises. This question is no longer to be regarded by this court as an unsettled question. The case of Younghause v. Fingar, which has the views of the Court of Appeals, and is reported in 47 N. Y. 99, and the same case which is expressly adjudicated by this court and reported in 63 Barbour, 299, must end discussion of the legal sufficiency of the notice in this case. It is against the respondent’s views.

But the respondent’s counsel urges a new view, and with great ingenuity insists that section 371, and the offer provided for therein, does not apply to appeals for a new trial, but to appeals on questions of law, only. If this position is the true one, the bar at large, and the courts without exception, so far as I know, have been practising and adjudicating under a mistaken view of these provisions of the Code. The whole of these provisions must, therefore, be examined. One entire chapter of the Code (chap. 5,) eleven sections, is devoted to this subject, the whole of which, as a system, is harmonious, and is so divided, and yet so connected, as to make a complete system of practice, providing for the trial of issues of law and issues of fact, and with suitable provisions applicable *to each. An analysis of these eleven sections, showing the appropriate office of each section, will show harmony instead of conflict, and will also show the error of the respondent’s view.

Appeals from justices’ courts to county courts, are now entirely controlled by the provisions of the Code, beginning with section 351, which repeals all other practice, and ending with section 371.

Section 352 specifies the cases in which appeals may be brought, first, those in which a new trial may be had, viz., cases where the demand exceeds $50; second, the cases which are exceptions, viz., cases in which though the claim exceed $50 exclusive of costs, yet the notice of' appeal states that the appeal is taken upon questions of law only.

Section 353 prescribes the time within which the notice of appeal must be served, and requires that such notice shall state the grounds of the appeal.

Section 354 prescribes the time within which the notice of appeal must be served; the manner of service; the persons upon whom it must be served; what costs the appellant must pay on appealing; what security he must give, and what other steps he must take to render hi¡| appeal effectual.

Section 355 relates to obtaining a stay of execution.

Sections 356, 357, 358 and- 359 prescribe the form of security for a stay of execution, and the manner of serving *fche papers to effect that object.

Section 360 relates to the return of the justice to the appeal, and how it maybe compelled, and distinguishes between returns made in cases, 1st, where the claim is below $50, and those where the appeal is upon questions of law; and 2d, cases where the claim litigated exceeds $50, and a new trial is desired in the county. In the former the testimony given on the trial is required to be returned by the justice ; in the latter, not.

Sections 361, 362 and 363 provide for obtaining returns in cases where the justice has gone out of office, for amendments to defective returns, and when a justice is dead, removed from the state, or insane.

Section 364 provides for the manner of hearing in the county court: 1st, where a new trial is not to be had ; and 2d, where a new trial is sought to be had.

Section 365 directs upon what papers the hearing shall be had in an appellate court.

Section 366 directs, first, upon what principles the appellate court shall review the case, and what powers they may exercise over the case and the parties, in both classes of cases, viz, where new trials are not to be had, and in cases where they are. This section has six subdivisions. The first relates to cases where the issue before the justice was an issue of law, and it confers power upon the county court to- allow amendments to pleadings, &c. The second subdivision is only an extension of the same power. The third subdivision authorizes the court, upon a certain contingency, to try a new issue, to be joined under their direction, to be tried by a jury, and to proceed to such trial. The fourth subdivision directs that such last mentioned issue so joined, or an issue brought up by appeal, shall be tried in the same manner as actions commenced in the Supreme Court. The fifth subdivision first specifies what power the county court possesses over its own determinations in such cases, and what liberty they may allow to parties in cases where new trials may be had; and it &lso allows to either party, at any time before trials to serve on the opposite party an offer in writing to allow judgment to be taken against him, for the sum, or' property,, or to the effect in such offer specified, and with or without costs, as said offer shall specify. It then further provides, that, if the party receiving such offer accept the same, and give notice thereof in writing within ten days, he may file the return and offer, with an affidavit of service of notice of acceptance thereof, and the clerk shall thereupon enter judgment, according to said offer.

This subdivision then declares what shall be the effect and liability of the parties to the undertaking in such case. It then provides that if notice of acceptance of such offer be not given, it shall be deemed withdrawn, and cannot be given in evidence. And it then provides that if the party to whom such offer is made, shall fail to obtain a judgment more favorable to him than that specified in said offer, then he shall not recover costs, but must pay tile other party’s costs from the date of the service of the offer. This fifth subdivision of § 366, it should be remarked, was enacted in 1865, three years after the provisions of § 371. The sixth subdivision of § 366 prescribes the practice in making up cases for new trials.

Section 367 directs what papers shall be entered with the clerk for making up the judgment.

Section 368 directs to whom costs shall be given upon the judgment of reversal or affirmance, but does not specify what costs.

Section 369 prescribes the practice in obtaining a restoration of a judgment collected, if it is afterwards reversed.

Section 370 provides for set-offs when one party recovers damages and the other party costs.

Section 371, the last section in the chapter, was introduced in 1863, as a new system of practice in certain cases, by allowing an appeal not only to the county court, but to the conscience and apprehensions of the prevailing party, by placing him in a condition of peril as to future' costs, in case he failed to reduce or otherwise modify an unjust or an unconscientious judgment; and it prescribes the proceedings of the parties to this end, and imposes the penalties for the omission to follow its spirit. The first subdivision of this section, it is plain to be seen from its general language, applies to all cases of appeal when the party desires a new trial, and is not limited to cases depending upon questions of law. In this, the respondent’s counsel is in error. It declares, in terms, that it applies to all cases of appeal. It relates to costs; it prescribes the amount of costs; it provides that the prevailing party shall be entitled to them; except in the cases where the appellant states the grounds of error in a particular form, and when. the prevailing party omits to modify, and where he receives a less favorable judgment on a new trial. This section is not at all in conflict .with subdivision 5 of section 366. The offers therein referred to are to.be made in an entirely different stage of the canse, and under different proceedings. This provision of § 366 was enacted three years later than the other, but is in harmony, and is in spirit the same, but for another state of the proceeding. Both provisions are in full force; both are necessary to complete the system.

[Third Department, General Term, at Albany,

March 5, 1873.

ISTor does an apparent inconsistency in the grounds of appeal affect the case. Two of those grounds, in the case before us, make it a good appeal under § 353, but give no advantage as to costs, as under § 371. One good ground was given, in the notice, under the provisions of § 371, to allow of the benefits of the provision as to costs, and that was a good notice. The case was tried upon that theory, without objection, and both parties claimed costs under it. By the provisions of that section the appellant is entitled to costs, as the law is now fully declared. These he has been denied by orderof the county court. The result is, that the order of the county court appealed from should be reversed, and the adjustment of costs in favor of the plaintiff by the clerk, and judgment thereon, be set aside. The clerk of Cortland county is directed to adjust the costs in this case in favor of the appellant, and to insert them in the judgment roll, and the appellant is entitled to recover costs of the appeal to the county court, and of the appeal to this court.

Order of county court reversed with $10 costs.

Miller, Potter and Daniels, Justices.]  