
    Robert Younghanse, Respondent, v. Adam Fingar, Appellant.
    Plaintiff recovered judgment in justice’s court for ninety-five dollars damages and costs. Defendant appealed to the County Court, stating in his grounds of appeal, “ that judgment should have been more favorable to him in this particular, to wit, that said judgment should not have been for more than twenty-five dollars damages, besides costs.” Plaintiff made no offer to modify judgment, and recovered in the County Court forty-nine dollars damages.
    
      Held, that defendant was entitled to costs of the appeal.
    No appeal lies to this court from an order of the General Term of the Supreme Court, made upon appeal from an order in an action in the County Court.
    (Argued December 16, 1871;
    decided December 19th, 1871.)
    Appeal from order of General Term of the Supreme Court, in the third department, affirming an order of the County Court of Columbia county, granting costs of this cause to the plaintiff.
    The plaintiff recovered a judgment in Justice’s Court, Columbia county, for ninety-five dollars damages and five dollars costs, August 23d, 1866.
    The defendant appealed therefrom to Columbia County Court for a new trial, and his notice of appeal contained, among other things, the following clause:
    “ 5th. The appellant claims the said judgment should have been more favorable to him in this particular, to wit: That said judgment should not have been for more than twenty-five dollars damages besides costs.”
    The plaintiff served no offer to modify the judgment.
    The cause was tried by jury in the Columbia County Court, February 21st, 1868, who rendered a verdict for plaintiff for forty-nine dollars.
    Upon taxation of costs, the clerk decided that the plaintiff was entitled to costs, and taxed the same.
    Upon affidavits of the facts, and upon the judgment roll, and all papers in the action, the defendant moved the County Court to set aside the taxation of costs by the clerk, to strike out from the judgment all parts thereof adjudging costs to plaintiff, to direct the clerk to tax the costs of defendant and enter same in judgment, and perfect judgment against plaintiff therefor, etc., etc.
    The County Court denied this motion with ten dollars costs, June 20th, 1868.
    From this order of the County Court the defendant appealed to the General Term of the Supreme Court, which affirmed the said order.
    
      Beale and Benton, for appellant.
    The order is appealable. (Code, § 11, sub. 4; Gregory v. Cryden, 10 Abb. N. S., 289; Leslie v. Leslie, 10 Abb. N, S., 64; Townsend v. Hendricks, 40 How. Pr., 143.) Appellant’s notice of appeal was sufficient to entitle him to costs. (Fox v. Nellis, 25 How., 147; Myers v. White, 37 How. Pr., 393; Reed v. Moore, 31 How., 264, 270, 271; Loomis v. Higbee, 29 How., 232, 235, 239 ; 30 How., 187.) The orders of General Term and of the County Court should be reversed, and the relief asked for by defendant granted. (Chamberlain v. Cholis, 35 N. Y., 477, 479, 481; 4 Wend., 95; 11 John., 155, 141; 5 Hill, 507; 3 Abb. N. S., 293, 369; 8 Abb., 70; 3 E. D. Smith, 432; 3 Abb., 71; 4 Fernan, 336.) Upon reversal defendant is entitled to restitution. (Code, § 330; 22 Barb., 83; 2 Wend., 164, 165; 9 How., 80.)
    
      B. E. Andrews, for respondent.
    The order is not appealable. (Code, § 11, sub. 8.) The notice is not within the spirit of section 371 of the Code. (Putnam v. Heath, 41 How. Pr., 269; Loveland v. Atwood, 31 How. Pr., 467; 
      Forsyth v. Ferguson, 27 H. P., 67; Barnard v. Pierce, 28 id., 232; Wallace v. Patterson, 29 id., 170; Gray v. Hannah, 30 id., 155; Smith v. Hinds, 30 id., 187; Hotchkiss v. Bank, 36 id., 61.)
   Peckham, J.

This case originated in a Justice’s Court, where the plaintiff recovered ninety-five dollars damages and five dollars costs. The defendant appealed to the County Court, and stated in his grounds of appeal, among other things, that the “ judgment should have been more favorable to him, in this particular, to wit; that said judgment should not have been for more than twenty-five dollars damages besides costs.”

The plaintiff recovered.in the County Court only forty-nine dollars damages. Each party claimed costs, and the court awarded them to plaintiff. On appeal, this order was affirmed in the Supreme Court, and that court without any opinion for its decision certifies this to be a proper case for review here. If it be a case of difficulty, it would seem eminently proper for that court to have given an opinion that we might the plainer see the grounds of their action, and the gravity of the point.

To certify to its gravity, and yet to pass it over without the consideration of a written opinion, does not seem to be entirely in harmony.

As to the merits, the Code provides, that costs shall be allowed to the prevailing party in judgments rendered on appeal in all cases, with the following exceptions and limitations : In the notice of appeal, the appellant shall state in what particular or particulars he claims the judgment should have been more favorable to him. If he claims that the amount of judgment is less favorable to him than it should have been, he shall state what should have been its amount. Within fifteen days after the service of the notice of appeal, the respondent may serve upon the appellant and justice an offer, in writing, to allow the judgment to be corrected in any of the particulars mentioned in the notice of appeal.” The appellant may serve a notice of acceptance in five days thereafter on the justice, who shall make a minute thereof in his docket, and correct such judgment accordingly. (Code, § 371.)

If the appellant fail to make such specification, he shall recover no costs unless he wholly reverse the judgment appealed from. (Code, § 371.)

Did the notice comply with this provision of the Code, and specify the “particular or particulars” of error; and did he specify what should have been the amount of the judgment ?

The purpose of this act is very plain. It designed to require the appellant to state the points in which he claimed the judgment was wrong; and if for too much, then for how much it should have been; so that the respondent, if he chose, might offer to correct the judgment in such respect. Ho precise form of words is required for the purpose. Any words that convey the idea are enough. Liberality in their construction, to attain the purpose, should always be indulged, especially in a justice’s court proceeding.

It may also be observed that this notice is not a confession of judgment. It is not to be so full and specific as that paper should be. It is a notice to the other party of the error complained of in the amount of the judgment. He may then offer to correct it, and then the other party assents or dis-. sents. If the appellant fails to file his assent to that of the respondent, then the whole goes for nothing. There is, under such a provision, scarcely a possibility of any error in the particulars to the prejudice of any one. How, as to this notice, appellant says one particular is, that the said judgment should not have been for more than twenty-five dollars damages.

Can any plain man fail to understand what this means? That it means the judgment is for too much. That it should be only for twenty-five dollars. And, in technical language, in view of that statute, as to which respondent knew the appellant was speaking, as it complained only of the surplus, it admitted the twenty-five dollars. By plain implication, it admitted and stated “what should have been its amount,” viz.: Twenty-five dollars.

No plain man can fail to see that he meant just that; that he conveyed that idea. Had he stated it in the plainest language, any linguist could have used, it would have made no difference in the rights of the respondent as to correcting the judgment. If the appellant had thought proper, he might afterward have refused his assent to the respondent’s acceptance, and then the offer is inoperative.

Nothing was lost or gained by the appellant’s stating a large or a small sum in his notice, or by using this form of expression instead of the precise words proposed by the respondent.

We are all of opinion that the notice was sufficient in that respect, and that the appellant was entitled to costs of the appeal, the judgment then having been made more favorable to him by “ at least ten dollars.”

Then is this an appealable order ?

The Code declares that this court shall have exclusive jurisdiction to review, upon appeal, certain orders and judgments of the Supreme and certain other courts in the following cases and no others:

1st. “In a judgment in an action commenced therein or brought there from another court, and upon the appeal from such judgment to review any intermediate order involving the merits,” etc.; and providing, in subdivision 4. “ In an order affecting a substantial right,” etc., which it is claimed includes the case at bar.

The difficulty is, it is not an order “ in an action commenced in the Supreme Court, or brought there from another court.”

This action was neither commenced in the Supreme Court nor brought there from another court. It has never been in the Supreme Court. In such case, both by the language and intent of the act, no appeal lies from a mere order in an action in a lower court, though made by the Supreme Court upon a mere appeal from the order. Any other construction would allow an appeal directly to this court, from a county or other lower court. Appeal should be dismissed without costs. All concur.

Appeal dismissed.  