New York Elevated v. Fifth National Bank of the City of New York

''Wm. H. Arnoux'' and

''Wm. F. MacRae'', for the motion.

Henry H. Anderson and Julien T. Davies, in opposition.

WAITE, C. J.

This is a motion to dismiss on the ground that the matter in dispute does not exceed the sum or value of $5,000. The suit was brought by the Fifth National Bank of the City of New York against the New York Elevated Railroad Company to recover damages for injuries to real estate. A trial was had which resulted in a verdict against the railroad company, on the ninth of June, 1886, for $5,000. At the time of the rendition of the ver dict the railroad company moved for a new trial. This motion was denied on the tenth of August, and on the twenty-sixth of the same month a judgment was entered for $5,068.33; that being the amount of the verdict, with interest added to the date of the judgment. The claim now made is that the value of the matter in dispute is to be determined by the verdict, without the interest.

The rule is settled what when a writ of error is sued out from this court by the defendant below, and no question is presented growing out of a partial defense to the action, or a counter-claim or a set-off, the value of the matter in dispute is fixed by the amount of the judgment. Gordon v. Ogden, 3 Pet. 33; Hilton v. Dickinson, 108 U.S. 165; S.C.. 2 Sup. Ct. Rep. 424; Henderson v. Wadsworth, 115 U.S. 276; S.C.. 6 Sup. Ct. Rep. 40. Our jurisdiction cannot be in voked until after a final judgment, and, until such a judgment has been rendered, the cause remains in the full judicial control of the court in which it is pending. It was because of this that we declined to take jurisdiction in Thompson v. Butler, 95 U.S. 694, where the verdict was for more than $5,000, but reduced to that amount, by leave of the court, before the judgment, which was for the reduced sum. It is true that our jurisdiction depends on the amount of the judgment, exclusive of interest thereon, (Knapp v. Banks, 2 How. 73; W. U. Tel. Co. v. Rogers, 93 U.S. 566,) but here the interest accrued before judgment, and not after. In The Patapsco, 12 Wall. 451, jurisdiction was taken in a case where the decree was for $1,982, 'and interest from the date of the report,' which made more than $2,000 due at the time of the decree; that being then the jurisdictional limit.

As the jurisdiction has once attached, it cannot be defeated by a waiver or release of the amount in excess of $5,000. The motion to dismiss is denied.

FIELD, J., took no part in this decision.