Williams v. Lindblom

Headnote

Where, upon argument of an appeal to this court from an order reversing a judgment in his favor, and granting a new trial, the appellant’s counsel was reminded of the danger to which the appellant was exposed by reason of his stipulation for judgment absolute, and opportunity given him to withdraw his appeal, which he declined, and proceeded to argument, held, that such appellant, after a decision against him, would not be permitted to withdraw his stipulation and take a new trial.

This was a motion for a re-argument and for leave to withdraw an appeal, and judgment in favor of plaintiff was entered upon the report of a referee, which was reversed by the General Term, and a new trial ordered. Plaintiff appealed to the Court of Appeals, stipulating for judgment absolute against him in case of affirmance, and the ordér of the General Term was there affirmed. (See Mem. of Decisions, 142 R. Y. 682.)

The following is the opinion in full:

“ Upon the facts presented to us we are satisfied that the plaintiff was fully informed of the purpose and effect of the stipulation for judgment absolute upon his appeal to this court. Upon the argument here the attention of his counsel was pointedly called to the danger to which the plaintiff was exposed by the stipulation, and opportunity was then given him to withdraw the stipulation and go to a new trial under the order of the General Term. But he declined, and for reasons now stated in his affidavit he preferred to argue

the appeal and take his chances of a favorable decision. Now, after the case has been decided adversely to him, the plaintiff asks to be relieved from his stipulation so that he may take the new trial. We do not think that we ought, upon the facts now appearing, to grant the relief now asked. Appellants cannot be permitted to experiment in this way by taking- the chances of success upon their appeals, and in the case of failure ask to be relieved from their stipulation.

“ The chances are, upon the facts appearing, that the plaintiff will suffer no great harm by being held to his stipulation. While in consequence of the stipulation he can obtain no affirmative relief or judgment against the defendants, the only relief they can have against him is a partnership accounting and a judgment for such sum, if any, as may be found due upon such accounting.

“ The motion must be denied.”