Hammond v. Carpenter

By the court, Balcom, J. There can be no doubt but that the defendant had the right' to appeal from the judgment of the justice to the county court. (Laws of 1849, . p. 292, § 5, sub. 2; Spraker agt. Cook, 16 N. Y. R. 567.) The decision of the county court was not final, for that court did not either affirm or reverse the judgment of the justice. It only made an order dismissing the appeal from the judgment of the justice, and an appeal lies from that order to this court. (Code, § 344; Deuel agt. Rust, 24 Barb. 438.) This is my conclusion, notwithstanding the difficulty there is in reconciling it with section 471 of the Code. The act of 1849 (Laws of 1849, p. 292), under which the appeal to the county court was brought, provides that the proceedings before the justice may be removed by appeal to the county court “ in the sanie manner and with the like effect, and upon like security as appeals from the judgment of justices of the peace in civil actions.” And as often as the legislature has altered the manner of appealing from the judgments of justices of the peace in civil actions,, the act of 1849 has conformed to such manner, for that act is a speaking and continuing statute. Hence the Code as it existed in 1863, when the defendant appealed to the county court, prescribed the manner the appeal should be made, except so far as it was then silent on the subject where the act of 1849 speaks (See Sedgwick on Statutory and Constitutional Law, p. 247, §c). The Code in 1863 was silent, and still is silent in one respect, concerning the security to be given by the' appellant in a case like this, which is prescribed by the act of 1849, and that is when the tenant appeals, in order to stay the issuing of a warrant or execution against him by the justice, he must give security “ for the payment of all rent [46] accruing or to accrue ” upon the premises subsequent to the commencement of the proceedings before the justice. Security, by an undertaking in proper form, was given in the case, and the most important question we are to determine is whether the security was properly approved. As the act of 1849 was passed, an appeal to the county court in a case like this, was required to be allowed by a judge upon an affidavit, and such judge was required to approve of the security. But after the passage of that act, the Code was amended so that no affidavit need be made or served, and no allowance of an appeal is necessary. And as the Code was in 1863, either the county judge or the justice could approve of the security given on- appeal from the judgments of justices of the peace to the county court in civil actions (Code, § 356), and I am of the opinion an approval of the security in this case by either the county judge or the justice, was all that was necessary. But if Justice Birdseye was right in holding in Deuel agt. Rust (supra), that the security must be approved by some officer who was formerly competent to allow appeals to the county court or court of common pleas, my conclusion in the case would be the same. For I hold that the approval of the security in the case by the county judge, was sufficient according to the Code or the act of 1849. Strictly speaking, if the security should have been approved at all by the county judge, he should have approved it before it was first served on the justice, and not subsequent to its service. But whatever' irregularity there was in that respect, it did not affect the substantial rights of the plaintiff, and the Code requires that such irregularities should be disregarded. 'The undertaking itself was not altered, or its effect varied. The erasure of the signature of the justice to the approval on it, and the signing of the same by the county judge, did not affect the liability of those who executed the undertaking. The safer course, however, would have been for the defendant [47] to have permitted the approval of the justice, to stand, and then had the county judge indorse a distinct and separate approval on the undertaking. For too many approvals would not have done any harm, so long as one was correct and sufficient. I will not express an opinion on the question, whether the approval of the security, by the county judge should be deemed an allowance of the appeal from the judgment of the justice. My conclusion is, the county court erred in dismissing the appeal, and that. the order of that court dismissing it should be reversed, with $10 costs. So decided.