King v. . Galvin

Rapallo, J. The action was for the wrongful taking of goods described in a schedule annexed to the complaint, and the amount of damages demanded was $1,700. The judgment being for the defendant, the sum demanded > in the complaint, in the absence of any modification of such demand, would for the purposes of an appeal be deemed the amount in controversy in the action. But in this case the plaintiffs have, by their own stipulation, withdrawn from the controversy their demand for a portion of the goods mentioned in the complaint. They have stipulated to withdraw their claim for all goods which had been purchased of Phillips, which are conceded to be the principal part of the property originally in controversy. In case of a new trial all they could possibly recover for would be the residue, and the value of that residue is all that is now in controversy. It is evident that the amount claimed in the complaint is no longer any guide for ascertaining the amount in controversy in the action. The parties have by their own stipulation deprived it of its efficacy for that purpose, and rendered the reference to it contemplated by the act of May 2, 1874, useless. *240 The provision of this act is not applicable where the parties have by stipulation modified or reduced the demand contained in the complaint. The amount in controversy being only the value of so much of the goods as were bought of parties other than Phillips, that value must be ascertained dehors the pleadings. It is shown in the moving papers that it was less than $200, and that on the trial no greater sum was demanded, nor was there any proof of any greater value. These allegations are not denied in the affidavits in opposition to the motion, and must be taken as established. - It is therefore clear that the amount in controversy in the action is less than $500, and the motion must he granted, and appeal dismissed, but without costs, the question being novel. All concur. Appeal dismissed.