John Pennie, Jr., Appellant, v. The Continental Life Insurance Company, Respondent

John Pennie, Jr., Appellant, v. The Continental Life Insurance Company, Respondent. This action was upon an endowment policy for $1,000. The answer admitted the liability and set up a counter-claim for loans amounting to $204.41. The G'eneral Term allowed the counter-claim and gave judgment for the balance. Held, that the judgment was not appealable under the amendment of 1874, to section 11 of the Code (chap. 822, Laws of 1874), as the matter in controversy was not the judgment but the counter-claim, and so the amount in controversy was less than $500. (Argued October 8, 1876; decided November 14, 1876.) Appeal from judgment of the General Term of the Supreme Court in the third judicial department, in favor of plaintiff. This action was upon an endowment policy issued by defendant in 1867, upon the life of plaintiff for $1,000, payable in six years. The answer admitted the issuing of the policy, and set up as a counter-claim various loans made by defendant to the plaintiff upon the policy amounting to $204.41, and alleged an offer to pay the balance. The court directed a verdict for the full amount of the policy with interest, amounting to $1,083, and a verdict was rendered accordingly. Exceptions were ordered to be heard at first instance at General Term. The General Term ordered judgment for $795.59, the amount of the policy less the counter-claim Samuel Hamd for the appellant. I/yma/m Tremwm for the respondent. The appeal will not lie because the subject-matter in controversy, exclusive of costs, is less than $500. (Laws of 1874, chap. 322; 58 N. Y., 489 ; 2 N. Y. Weekly Dig., 151.) [MAJORITY — Ohueoh, Gh. J.] Ohueoh, Gh. J. A verdict was directed at the Circuit for $1,083, and the defendant’s exceptions ordered to be heard at General Term in the first instance. The General Term ordered judgment for the plaintiff for $795.59, from which the plaintiff appealed to this court, and the question is, whether it is appealable under chapter 322 of the Laws of 1874. We think it is not. The object of the act was to limit appeals to amounts in controversy exceeding $500. Although the judgment exceeded $500, yet the sum in controversy, is considerably less than that amount. The only controversy in the case, is, whether the counter-claim of about $200 should be allowed. Ordinarily the amount of the judgment is in controversy. In this case it is not. The amount of the judgment is not contested—the only contest is, whether the judgment should be increased about $200. The appeal must be dismissed. All concur. Appeal dismissed.