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The Green Bag

The present provision of the Code of Civil Procedure on this subject is sec tion 1317, which is as follows: — Upon an appeal from a judgment or an order, the appellate division of the supreme court, or general term, to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify, the judgment or order ap pealed from, and each interlocutory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties, and it may, if necessary or proper, grant a new trial or hearing. A judgment affirming wholly or partly a judgment from which an appeal has been taken, shall not, expressly and in terms, award to the respondent a sum of money, or other relief, which was awarded to him by the judgment so affirmed. To understand the decisions of the courts upon the subject dealt with in this section of the Code, it is necessary to consider its history. When David Dudley Field undertook the reform of the system of practice which prevailed in New York, it was his purpose to assimilate as far as pos sible the practice in common law cases to that which had prevailed in equity, so far as the pleadings and the powers of the appellate tribunal to pass upon the merits were concerned. His Code of Practice of 1848 abolished the dis tinction between pleading in common law and in equity cases, and laid down rules of pleading which were to a great extent those which had prevailed in equity. He abolished the common law writ of error, and provided that the re view of the proceedings in the court of first instance should take place by the equity method of appeal. The function of an appeal up to that time had always been to bring up the whole record, and accordingly the Field Code of Procedure of the State of New York provided (section 330) :— Upon an appeal from a judgment or order, the Appellate Court may reverse, affirm, or

modify the judgment or order appealed from in the respect mentioned in the notice of ap peal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When this Code of Procedure came to be administered, it was unfortunately construed by judges who did not sympa thize with the codifier. It must be ad mitted that its provisions were construed in a very narrow spirit. The result in the State of New York has not been, as Field intended, to apply as far as pos sible the rules which prevailed in the courts of equity to the trial and dis position of common law cases, but to apply to equity cases the rules that had prevailed under the modified common law practice to which reference has been had. Probably that is true to a large extent in most of the states where the Code practice prevails. In Astor v. L'Amoreux* the New York Supreme Court had taken advan tage of the section just quoted, to render final judgment upon appeal. Un fortunately the Court of Appeals re versed this reasonable judgment, and in spite of the express provision of the Code held that all the Supreme Court was authorized to do was to order a new trial. In Griffin v. MarquardtJ this deci sion was followed in an equity action, and the Court of Appeals held that the Supreme Court on reversing the judg ment was bound to grant a new trial "unless it is entirely plain, either from the pleadings or from the very nature of the controversy, that the party against whom the reversal is pronounced, cannot prevail in the suit." In such cases the court has not only applied to the rendering of judgment for a new trial instead of final judgment the rule which had come to be adopted •8 N. Y. 107. t 17 N. Y. 28.