Peterson v. Swan
| Decision Date | 21 March 1890 |
| Citation | 23 N.E. 1004,119 N.Y. 662 |
| Parties | PETERSON v. SWAN. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Motion to remit.
Arthur L. Andrews, for the motion.
Esek Cowen, opposed.
It has been frequently held by this court that, although a copy of the record has been filed with the clerk, pursuant to the notice of appeal, yet the court below so far retains jurisdiction of the case as to enable it to make such amendment to the record as it shall deem proper, and to order that the amendment shall be duly certified to us, and filed with our clerk. When thus filed, we regard it as part of the original return, and proceed to hear the case as thus prepared. Of course, if the amendment be of such a nature as to show that the record as amended was not before the general term, we should not hear it, as our jurisdiction is confined to a review of the decisions actually made by that tribunal. New York Cable Co. Case, 104 N. Y. 1, 110 N. E. Rep. 332. The plaintiff's motion to remit, for the purpose of permitting the court below to amend the record if it should desire to do so, is therefore unnecessary, and must be denied. The defendant's motion for judgment will be held until the first motion day of the coming term, when it may be brought on without further notice. What disposition beneficial to the plaintiff can be then made of the case it is somewhat difficult to see. If a record show that the order or judgment of a court below was by consent, or was not an actual determination of such court, an appeal to this court could not be heard; for, as already stated, we cannot review decisions of the lower courts entered by consent, or taken merely pro forma, where the record shows such facts. All concur.
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In re Switzer
...is his own, and not the court's. Chapin v. Perrin, 46 Mich. 130; Brick v. Brick, 65 Mich. 230; Finch v. Carpenter, 29 Hun 268; Peterson v. Swan, 119 N.Y. 662; Monell Lawrence, 12 Johns. 534; Atkinson v. Maups, 1 Cow. 709; Williams v. Neil, 4 Heisk. 279; Jones v. Williamson, 6 Coldw. 76; Rin......
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Boggess v. Harris
...v. Mahaffy, 63 Iowa, 55, 18 N. W. 685; Brier v. Railway Co., 66 Iowa, 602, 24 N. W. 232; Hughes v. Stanley, 45 Iowa, 622: Peterson v. Swan. 119 N. Y. 662, 23 N. E. 1004; Welch v. Smith, 65 Miss. 394, 4 South. 340. This is not a case where the court was called upon to determine some matter a......
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Schunk, Matter of
...was made on the merits. In sum, the record does not clearly indicate that the initial order was made by consent ( see, Peterson v. Swan, 119 N.Y. 662, 663, 23 N.E. 1004; 4 N.Y.Jur2d, Appellate Review, § 34). We do not reach the remaining issues raised in appellant Vargo's brief as they have......
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Waldo v. Schmidt
...or another, the record as made in the court of original jurisdiction has to be amended for use in the appellate courts. Peterson v. Swan, 119 N. Y. 662, 23 N. E. 1004. There are other proceedings, notices, and orders, however, in which we find the exact antithesis of this general condition.......