Fraser v. Child , 4 E.D. Smith 243 ( 1855 )

By the Court.

Ingraham, First J.

Upon examimng the provisions of the Code as to the judgment to be rendered on appeal by tMs court, (§ 366,) we entertain so much doubt as to the power of the court to order a judgment, other than a mere reversal, in any case in favor of the appellant, such as ought to have been rendered by the court below, that we feel constrained to deny this motion. In the case of Easton v. Smith, 1 E. D. Smith, 318, such a judgment was rendered, but the point was not argued before us.

If the plaintiff in tMs case prefers a re-argument of Ms motion on tMs point, as it has not been referred to on the points of either counsel, he may do so at the next term, on notice to the opposite party. Upon the merits, we thick the motion should be granted, if the Code authorizes it.

Daly, J., concurred.

Woodruff, J., held, that when it was clear that, as matter of law, the plaintiff was entitled to judgment, and that a new trial could not change the case, the motion should be granted, and the amendment he ordered, so as to direct the entry of a judgment for the plaintiff for the amount claimed, with costs of appeal and costs of the court helow.

Motion denied, without costs. ^(a)

(a) The motion was not renewed. Another suit was instituted by the plaintiff in the court below, and a judgment for the amount claimed was recovered, which this court afterwards affirmed upon an appeal taken by the defendant. The court has since held, peremptorily, that in such cases a simple reversal is all that can be adjudged, and that the party must, therefore, be left to a new action.—Rep.