THE PEOPLE, upon the relation of FIGANIERE, a. THE JUSTICES OF THE NEW YORK MARINE COURT

THE PEOPLE, upon the relation of FIGANIERE, a. THE JUSTICES OF THE NEW YORK MARINE COURT. Supreme Court, First District; Special Term, September, 1855. Appeals in Maeine Couet. — Mandamus. An appeal lies from the Special Term of the New York Marine Court to the General Term. It seems, that, upon a fair construction of the several acts relative to the Marine Court, appeal from the Marine Court to the New York Common Pleas lies only from the decision of the General Term of the former. Application for a mandamus requiring the justices of the New York Marine Court to vacate an order made by them, granting a new trial. In October, 1854, the relators, Henry S. and G. I. Figaniere, commenced an action in the New York Marine Court, against one Thomas Jackson, to recover damages for an alleged trespass. The action was tried before Justice Phillips and a jury, and the plaintiffs recovered a verdict for $450. The defendant appealed to the General Term, where an order was made granting a new trial, unless the plaintiffs would consent that their verdict should be reduced to $250. The plaintiffs in the action now applied in the Supreme Court for a mandamus to compel the justices of the Marine Court to vacate this order. C. JV. Black for the motion, contended that the General Term of the Marine Court bad no power to grant a new trial. A. A. Phillips and A. Wakeman in opposition. [MAJORITY — CeeeKE, J.] CeeeKE, J. The only power of review possessed by the justices of the Marine Court over their own decisions and judgments is given by the act passed July 21,1853. (Laws of 1853, 1165, ch. 617). Previously to this they could not grant a new trial, or reverse their judgments, (The People v. The Marine Court, 12 Wend., 220); but by this act they are authorized to appoint general terms, at such time as they may deem proper, and an appeal may be taken from a judgment entered by the direction of a single justice of the court to the justices thereof at a general term, in the same manner and with the like effect as appeals in the Supreme Court from the decision of a single justice to the general term. There is no provision for a motion for a new trial before a single justice at special term, as in the Supreme Court ; but it does not follow that a party cannot obtain a new trial by appeal to the general term, on the same grounds and for the same reasons for which a new trial could be obtained in the Supreme Court by motion. The legal signification of proceedings on appeal does not import the review merely of questions of law. “ Appeal” signifies simply the removal of a cause from an inferior to a superior jurisdiction ; and any question of fact or law, or both, may be the subject of appeal, or the whole facts as the whole case: as, for instance, appeals in summary proceedings to remove tenants, from the decisions of justices of the peace to the Court of Common Pleas, or county courts. It is, indeed, now the substitute for a writ of error; but it is more : it is the method by which all the mistakes in the judgment of an inferior jurisdiction are rectified, except when otherwise specially provided. If a motion for a new trial before a single justice had not been expressly prescribed in the superior courts by section 265, those courts would have the right, from their inherent power of re-deliberation and review, to modify and reverse their judgments at general term, for any cause. So, the Marine Court, as a consequence of the new power invested in it by the act of 1853 to re-consider and review its judgments by appeal, without restriction or qualification, can, as it has done in the present case, vacate or modify its judgments on the ground of being against the weight of evidence, as well as if exceptions were taken at the trial, and the objections raised involved only questions of law. I am, therefore, of opinion, that in the absence of any provision in the act of 1853, requiring a motion for a new trial in the first instance, that the questions usually instituting grounds for such an application can be heard and determined in the Marine Court on appeal to the general term, and only in this way, and that the words in the act, “ in the same manner and to the like effect,” apply to the method of conducting the appeal and to the results, and not merely to the grounds and reasons of the appeal. It was urged by the counsel for the relator that the power of review, given by the fifth section of this act, applies only to decisions on motions to open defaults. This would be contrary to the whole tenor and evident aim of the act extending the jurisdiction, remodelling the organization of the court, and investing it with new and unrestricted authority to hold a general term. Whatever may be the obscurity of part of the language of section 5,1 cannot suppose that the Legislature intended that all this new machinery was designed exclusively for cases of default. In answer to the remark that the defendant ought to have applied to the Court of Common Pleas for a new trial, I am of opinion that appeals from the Marine Court to the Court of Common Pleas can only be from its decisions at general term. The action and deliberation of the inferior court must be always exhausted before the appellate court can entertain jurisdiction of the cause. In the language of Judge Bronson in Gracie v. Freeland, (1 Comst. 228), upon appeals from the Supreme Court to the Court of Appeals, “ it is not to be presumed that the Legislature intended the parties should go to the court of last resort before they had obtained the judgment of the full bench in the court where the proceedings were instituted. We ought to find unequivocal words to that eifect before we give such construction to the statuteand, again: “ if the party has a right to a hearing at the general term, then he should go there from the special term, instead of taking an appeal. The Legislature could not have intended that there should be an appeal to this court, before the matter had been finally disposed of in the court of original jurisdiction.” The defendant, therefore, had no other remedy than an appeal in the first instance to the general term of the Marine Court, and the question was properly entertained there. It is unnecessary to consider the other points discussed. The application must be denied, with costs.