
    James Laforge, Respondent, v. John McGee, Appellant.
    Second Department,
    June 18, 1908.
    Appeal — Municipal Court — modification of judgment.
    The Appellate Division will not modify a judgment of the Municipal Court of New York at the instance of a respondent who has allowed his time to appeal to expire.
    Appeal by the defendant, John McGee, from a judgment of the Municipal Court of the city of Mew York, borough of Richmond, in favor of the plaintiff, rendered on the 21st day of January, 1908.
    
      Jacob E. Salomon, for the appellant.
    
      George J. Greenfield, for the respondent.
   Woodward, J.:

Both parties ask for a reversal of this judgment, the appellant absolutely and the respondent conditionally. The latter claims to have been entitled to a judgment upon which a body execution might issue under the provisions of section 251 of the Municipal Court Act (Laws of 1902, chap. 580). The judgment as entered does not conform to the statute, and the time having expired for making a motion to amend under the provisions of section 254 of the act, as well as for the time of appeal, the respondent urges that it is within the power of this court to modify the judgment so as to meet the requirements of the statute. We are pointed to no direct authority for such a modification. Section 20 of the Municipal Court Act provides that the provisions of the Code of Civil Procedure and the rules and regulations of the Supreme Court, so far as applicable and not in conflict with the act, shall apply to the Municipal Court, and section 1294 of the Code of Civil Procedure provides that a “ party aggrieved may appeal.” This, when read with the provisions of the Municipal Court Act, and in the light of the rules governing appeals, would seem to preclude the idea of modifying a judgment at the request of a respondent who has permitted the time for appeal to pass without taking action. The judgment as to a party who does not appeal is conclusive after the time for appeal has expired, for by neglecting to appeal he in substance says that he is not aggrieved by the judgment. Section 310 of the Municipal Court Act (as amd. by Laws of 1907, chap. 664), in providing that the “ appellate court may reverse, affirm, or modify the judgment, order or final order appealed from,” must be construed as being limited to the appeal of a party aggrieved, for it is only such a party who is permitted to appeal.

The respondent desiring a reversal, under these circumstances, and the appellant, as we believe, being entitled to a reversal by reason of the fact that, while the action appears to have been predicated upon the theory of deceit and fraud, the evidence tends rather to the support of an action for a breach of contract, the ends of justice would seem to require a reversal of this judgment and the awarding of a new trial, costs to abide the event.

Jenks, Gaynob, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  