General
Joseph Begley and others v. Horace G. Chose and others
4 Daly (N.Y.) 157·New York Court of Common Pleas·1871·NY
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Opinion
Joseph Begley and others v. Horace G. Chose and others.
On appeal to this court from a judgment rendered in a District Court, the notice of appeal required by § 363 of the Code of Procedure should point out clearly the error complained df, whether in the process, pleadings, proceedings on the trial, or in the rendering of judgment. It is not enough to state generally that the judgment appealed from is against both the law and the evidence, and should have been in favor of the appellants and against the respondents.
Where the notice of appeal states no more than this, the judgment will be affirmed, without an examination of the merits.
Appeal by defendants from a judgment of the First District Court. The facts are stated in the opinion.
N. J. Wyett, for appellant.
H. J. Begley, for respondent.
[MAJORITY — By the Couet.—Larbemoee, J.]
By the Couet.—Larbemoee, J.
—It has been repeatedly held by this court that the notice of appeal required by section 853 of the Oode of Procedure should point out clearly the error complained of, whether in the process, pleadings, proceedings on the trial, or in the rendering of judgment. In this respect, the notice of appeal in this action is defective. It states in general terms, that the judgment appealed from is against both the law and the evidence, and should have been in favor of the defendants and against the plaintiffs. These statements are too vague,' and fail to point out the error complained of (Lee v. Schmidt, 1 Hilt. 537; Kelty v. Jenkins, 1 Hilt. 73; Derby v. Hannin, 15 How. Pr. 32). It does not appear in what particular the judgment in question is contrary to the law or the evidence in the case, and the application for a dismissal of the complaint will not be entertained in a court of review, when it appears by the record that no such relief was sought in the court below. There are no exceptions in the case as presented, and the appellants are concluded as to any objections not raised or passed upon at the trial.
The judgment appealed from should be affirmed, with costs.
Judgment affirmed accordingly.
Present, Daly, Ch. J., Labremobe, and J. F. Daly, JJ.