John Schenck, Appellant, v. Mathew Marx, Respondent

John Schenck, Appellant, v. Mathew Marx, Respondent. (Argued December 8, 1890; decided December 16, 1890.) Where, in an action for money had and received, plaintiff recovered a judgment for less than $500, and his own evidence on the trial did not show a claim to that amount exclusive of costs, and plaintiff did not appeal, but, upon an appeal by defendant, the judgment was reduced and as thus modified, affirmed, held, that the amount in controversy was the amount of the original judgment, and so, that this court had no jurisdiction to entertain an appeal to it by plaintiff. (Code Civ. Pro. § 191.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 11,1889, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a verdict. [MAJORITY — Earl, J.,] The following is the mem. of opinion: “ This action is founded upon an implied contract for money had and received. Hence an appeal from any judgment rendered in the action is not allowed to this court by section 191 of the Code, if the matter in controversy is less than $500. The judgment, exclusive of costs, is for $238.70. The plaintiff was satisfied with the judgment and did not appeal therefrom. The defendant was not satisfied and appealed, and hence thereafter the only controversy between the parties was over that judgment. The General Term reduced the judgment to sixty dollars and interest, and affirmed it as. thus modified. The plaintiff complains of the modification, and the matter still in controversy is no more than the amount of the original judgment. But if we go behind the original judgment, it is impossible to see upon the plaintiffs own evidence and claim at the trial how the matter in controversy was as, much as $500. Hence we have no jurisdiction to entertain, this appeal, and it must be dismissed, with costs.” Henry G. Willcox for appellant. Mathew Marx, respondent in person. Earl, J., reads for dismissal of appeal. All concur. Appeal dismissed.