Judgment on appeal - Reversal in whole or in part. The power to correct an erroneous judgment does not depend upon the question whether the error was committed by a jury or by the justice. In Fields v. Moul, 15 Abb. 6, the justice by a clerical error entered a judgment in favor of the plaintiff for $10 too much in an action of trespass for taking personal property. On an appeal taken by the defendant to the county court, the justice certified in his return that he included $10 too much in the judgment by mistake in footing up the figures, and the county court reversed the judgment as to the $10, and affirmed it as to the residue, with $5 costs to the appellant. This judgment was affirmed by the supreme court upon an appeal taken to that court. In this last case the principal authorities upon this and similar questions are fully and ably reviewed by HOGEBOOM, J. A few extracts will be given from the opinion: "The county court corrected the error, and the sole question is, whether it had the power; in other words, whether as to entire damages, where there was a clear mistake, and where there was only one plaintiff and one defendant, the county court could reverse in part and affirm in part. But for some adjudications, I should have no doubt upon the subject, as the statute seems to me most singularly clear and unambiguous. It is as follows: 'In giving judgment, the court (county court) may affirm or reverse the judgment of the court below, in whole or in part, and as to any or all of the parties, and for errors of law or of fact.'" Code, § 366. The power would appear to be here expressly conferred in distinct terms, both as to amount and as to parties. * "In Kasson v. Mills, 8 * How. 377, this court in 1852, in the eighth district, came to the conclusion that under the former decisions the county court was incompetent to affirm in part and reverse in part, a judgment of a justice's court rendered for entire damages. They held, that under the Code they might reverse as to some of the parties, and affirm as to the others; but as to the damages or recovery, the former decisions must be upheld. I am not satisfied with the result at which the court arrived in the latter particular, and do net think that in that respect the case ought to be followed. The court says: It was never claimed, under this or similar provisions (to give judgment as the right of the matter may appear), that an entire judgment, as for damages, could be reversed in part and affirmed in part. If there was no evidence to support the judgment, it was reversed; if there was evidence upon both Judgment on appeal - Reversal in whole or in part. sides, a mere conflict of evidence, the judgment was affirmed.' But suppose as to a portion of the amount of damages it was perfectly clear that there was no evidence to support the judg ment, and as to the residue, that it was as clear that the uncontradicted evidence supported the judgment for that precise residue, is it not, upon principle, proper, that as to the former, the judgment should be reversed, and as to the latter, affirmed, more especially when it appears that it was a mere mistake or inadvertence? And as to the question of power, when the statute says the court may affirm or reverse the judgment in whole or in part, and as to any or all the parties, is it not limiting the plain language of the act to say that the court shall not affirm only in part, except where the judgment is for distinct things, as for · damages and costs? If by entire damages it is meant that the evidence makes it impossible to dissect the damages and see with clearness how much is erroneous, and how much well founded, I assent to the correctness of the former adjudications, as applied to the Code of Procedure, otherwise not. I think the power is conferred, and the propriety and extent of its exercise must be left to the enlightened judgment of the court." The power of all appellate courts to reverse in part and to affirm in part is now conclusively settled by the court of appeals. Brownell v. Winne, 29 How. 193, 201; S. C., 29 N. Y. (2 Tiff.) 400. There are some other cases which illustrate the practice under the Code. In Shannon v. Burr, 1 Hilt. 39, the plaintiff recovered a judgment for $15 damages, in a case in which the law would not give more than nominal damages, and on an appeal the New York common pleas reversed the judgment as to all but the sum of six cents damages, and affirmed the judgment for that amount, without costs of the appeal to either party. So, in an action for a fraud, if it appears that the judgment is for too large a sum, and that there is a particular amount which ought to have been deducted from the recovery, the appellate court may reverse the judgment for so much as ought to have been deducted, and affirm it as to the residue. Harris v. Bernard, 4 E. D. Smith, 195. And there is one case which extends the rule still further than any of the cases already cited. In LaMotte v. Archer, 4 E. D. Smith, 46, the plaintiff recovered a judgment against the plaintiff for $100 damages, in an action of trover. The evidence rendered it certain that this judgment was considerably larger than the law would allow as a measure of damages in that action. But it was a case in which, upon the findings of fact in the court below, the plaintiff was entitled to some damages, or about onehalf of the amount recovered. Upon an appeal to the common pleas, that court ordered a reversal of the judgment, unless the plaintiff chose to accept the sum of $60, in which case the judgment was to be affirmed for that amount, and reversed as to the residue. The court said, per WOODRUFF, J.: "The amount of damages given ($100) is wholly without evidence in its support, and upon this ground we would be warranted in reversing it. But the Code requires us to do substantial justice between the parties, if the case has been fully investigated; and my conclusion is, that we should give the plaintiff the privilege of making a reasonable abatement from the amount of the judgment, and suffer it to stand for the residue. "Although a finding for $75 might, perhaps, be sustained, I am not satisfied that the three articles have not depreciated since they were purchased; and in view of all the circumstances disclosed by the evidence, I think that the plaintiff will be fully indemnified by a recovery of $60 damages and her costs below. * * "If this be deemed arbitrary and speculative, let it be answered that the court do not require the plaintiff to make such abatement. No injustice is done to her, since there is a sufficient ground for a reversal. She may elect to make the abatement or not, at her pleasure. * The order should be, that if the plaintiff elect within ten days to reduce the damages to $60, and her costs below, and file written statements of such election with the clerk, the judgment is affirmed to that extent, and reversed as to the residue, without costs to either party on appeal; on default of such election, the judgment is reversed, with costs." This case may seem, at first sight, to go quite as far as the rule can be extended. But it certainly conforms to the spirit of the Code by attempting to do justice between the litigant parties. And since it leaves the successful party entirely at liberty to accept a modified judgment, or to submit to a reversal in a case in which a reversal might with entire propriety be ordered upon points of law, this must be regarded as a wise and a just exercise of the power conferred on the appellate court. If a plaintiff has recovered an erroneous judgment, as well as an unjust one as to its amount, he is favored when the court permits him to take a reasonable and just judgment, without the VOL. IV.-66 Order for reversal unless respondent consents to a reduction of judgment - Form, etc. payment of the costs of the appeal; and if he refuses to do this, he certainly has no ground for complaint when the court enforces the law by an entire reversal of the judgment at his expense. This subject has been pursued at some length, but it was difficult to say less, if the principal authorities were to be presented and considered; and those who do not possess the reports referred to will be least likely to complain. The form of an order to reduce the judgment, and of the respondent's consent thereto, will be sufficient if it clearly specifies what is ordered and what is accepted by the respondent. Order for reversal unless respondent consents to a reduction of judgment. (Title of cause in county court.) At, etc., on, etc. (As in the form, ante, 484, to the *, but omitting what is said as to the affidavits, and then continue) That the judgment of the said justice be reversed, with the costs of this appeal, unless within ten days after the service of a copy of this order upon him or his attorney, the respondent makes and files with the clerk of this court a written consent to reduce said judgment, and also serves a copy thereof upon the appellant's attorney within the same time; and such consent shall be to the effect that the respondent consents to reduce the recovery for damages in said action to the sum of one hundred dollars, as of the day of 18 ; and if the judgment be so reduced, then it is ordered that the judgment so reduced be in all things affirmed, with costs to the appellant (or the respondent). If the respondent elects to reduce the judgment to the amount specified in the order, he ought to make and file a written statement to that effect with the clerk of the appellate court, and also to serve a copy of it upon the appellant's attorney within the time allowed for that purpose. of Form of consent to reduce judgment. (Title of cause in county court.) day In pursuance of an order made in this cause on the 18, I, John Doe, the respondent and plaintiff, do hereby consent that the judgment appealed from in this action be reduced to the sum of one hundred dollars damages, as of the day of Reversal as to any or all the parties - Judgment by default. The form of a judgment in such a case will be given in a subsequent place. Post, 560. Section 4. Reversal as to any or all the parties. The power to reverse a judgment as to any or all of the parties is as clear as the power to reverse a judgment in whole or in part. Indeed, there never has been as much question upon the right to reverse as to any or all of the parties, as once existed in relation to the power to reverse a judgment in part, and affirm it as to the residue. Angell v. Cook, 2 Pars. Sup. Ct. 175. In actions upon contract, if the plaintiff proves a good cause of action against one defendant, while no proof is made against the other, and if a judgment is rendered against both defendants, it may be reversed as to the one proved liable, and reversed as to the other. Nixon v. Jenkins, 1 Hilt. 318. So, in actions for a tort, the county court may reverse a judgment as to one defendant, and affirm it as to another, where the circumstances of the case are such as to authorize such a judgment. Van Slyck v. Snell, 6 Lans. 299; Giraud v. Stagg, 10 How. 369; S. C., 4 E. D. Smith, 27. This case is an elaborate and able exposition of the subject by WOODRUFF, J. See, also, Alexander v. Hoyt, 7 Wend. 89, as to the rule before the Code. The case of Farrell v. Calkins, 10 Barb. 348, is opposed to the cases which have just been cited, and is overruled by the current of authority. It is also opposed to all the cases cited upon the analogous principle of a reversal in part, and an affirmance in part. Ante, 514. And, more than that, it is opposed to the plain language of the Code, which declares that the county court may reverse a judgment as to any or all of the parties. Code, § 366. That a reversal as to one defendant, and an affirmance as to another, would come precisely within the meaning as well as the letter of the statute, is as evident as any thing can be made. It is of no consequence what the old rule was, or what the principles of the common law declare; it is sufficient to say that the statute is so explicit as to the present rule, that no examination of the older cases would be of the least service. Section 5. Judgment by default. A practical question of considerable importance sometimes arises in relation to the power of the county court to reverse or affirm a judgment by default. In Whitney v. Bayard, 2 Sandf. 634, it was held that on an appeal from a justice's court, the judgment will be reversed by default, if the respondent does not appear to argue the appeal |