Ellert v. Kelly
New York Court of Common Pleas
The plaintiff,' Ellert, having recovered a judgment in the Marine Court, upon the verdict of a jury, in an action for slander, the defendant appealed to this court, where “the judgment was reversed with costs.” The appellant applied to this court, at a special term, for an order directing the clerk to re-adjust the costs, as taxed by him, and allow the defendant the costs wMch he would have recovered m the Marine Court had the judgment in that court been given in his favor.
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The plaintiff,' Ellert, having recovered a judgment in the Marine Court, upon the verdict of a jury, in an action for slander, the defendant appealed to this court, where “the judgment was reversed with costs.” The appellant applied to this court, at a special term, for an order directing the clerk to re-adjust the costs, as taxed by him, and allow the defendant the costs wMch he would have recovered m the Marine Court had the judgment in that court been given in his favor. The motion was demed; the judge at special term holding, that upon appeals from the Marine and District Courts, the…
1Opinion of the Court
By the Court.
Woodruff, J.
In this case the plaintiff recovered a judgment in the court below against the defendant. This court, on appeal, reversed that judgment for error appearing by the return. It by no means foEows that the defendant was entitled to judgment in the court below in his own favor, and to his costs in that court as a part of that judgment.
Had this court deemed the case one in which we could pronounce judgment on the merits, the judgment here would have been not a mere judgment of reversal, (which leaves the merits undecided and the plaintiff at Eberty to prosecute further, if…
2Cases cited1 opinion
- Estus v. BaldwinNew York Supreme Court · 1853