MURPHY a. LONG

MURPHY a. LONG. New York Common Pleas ; General Term, May, 1857. Appeal.—Increasing Judgment. The general term of the IT. T. Marine Court has no power,'on appeal from a judgment rendered at special term, to direct that it be modified by increasing the amount. The utmost that the court can do where a judgment appealed from is held to be too small, is to direct a new trial unless the party against whom such judgment is rendered consent that it be increased. Appeal from a judgment of the Hew York Marine Court. [MAJORITY — By the Court—Brady, J.] By the Court—Brady, J. —The justice at the special term of the Marine Court rendered judgment for the plaintiff for $137.38 and $12.00 allowance. The plaintiff appealed from the judgment thereon entered to the general term of that court, and after hearing the respective counsel for the parties, the general term made an order that the judgment be so modified that the plaintiff recover of the defendant $209.88, together with $19.23, in all $229.13, and that said judgment be entered as of January 29, 1856. In thus increasing the judgment the general term exercised a power not possessed by it, and never exercised by courts in banc in England or this State. Sometimes, where the verdict or finding is palpably too small, the court has ordered an increase of the judgment, if the defendant consented to avoid the necessity and expense of another trial (Richards v. Sandford, 2 E. D. Smith, 349), but not otherwise. The general term of the Marine Court might have directed a new trial, unless the defendant consented to the increase of the judgment, but beyond that they had no jurisdiction. The language of the order of the general term is that the judgment be modified, which could not be accomplished by imcreasi/ng the judgment. The judgment of the general term of the Marine Court must be reversed.