Mathews v. Danahy

Rombauer, J., delivered the opinion of the court on motion to transfer to the supreme court. The defendants, respondents herein, have filed a motion to transfer this cause to the supreme court, because the amount in dispute, exclusive of costs, exceeds the sum of twenty-five hundred dollars, and the supreme court has exclusive appellate jurisdiction thereof. The plaintiff’s petition was filed April 23, 1883, and [355] claimed an aggregate balance of $2,355.51 dne the plaintiff from the defendants, and asked judgment for said amount and interest. The cause was tried in the court below on May 26, 1886, and resulted in a judgment for the defendants. The amount in dispute between the parties at the date of the trial, if determined by tlie pleadings alone, was in excess of twenty-five hundred dollars, exclusive of costs. ^ This, on the authority of Van Gelder v. Van Gelder (82 N. Y. 128, 130), would have ousted this court of appellate jurisdiction. It appeared, however, upon the trial, both by the stipulation of parties and by an instruction asked by the plaintiff, that the only matter in dispute between them was the contract price for filling thirteen thousand eight hundred and twelve cubic yards of earth, at fifteen cents per yard, which amounts to $2,071.80. Conceding that the plaintiff was entitled to all he thus claimed, with legal interest from the date of the institution of the suit to date of trial, and the amount in dispute at the last named date was less than twenty-five hundred dollars. This showing, according to the rule stated in Brown v. Sigourney (72 N. Y. 122), disproves the claim advanced by the defendants, that, at the date of the trial, the amount in dispute was more than twenty-five hundred dollars. It results that the appeal was properly allowed to this court, and that the motion to transfer must be overruled. It is so ordered. Thompson, J., concurs Lewis, P. J., is absent.