Majority
p. 271Sperry v. Hillman et al. (Common Pleas of New York City and County, General Term. February 2, 1891.) Argued before Allen, P. J., and Bischofe and Pryor, JJ.
Headnote
Eight to Appeal—Waiver.Pursuant to a decision on appeal from a judgment that it should be reversed unless plaintiff should stipulate to reduce his recovery to a certain sum, in which case the judgment should be affirmed, plaintiff gave the stipulation, and entered judgment for the reduced sum. Held, that he thereby waived the right to a further appeal from the judgment.
Appeals from city court, general term.
Action by Howard A. Sperry against Theodore Hillman and Emil Carlebach. At the trial, plaintiff recovered a judgment in the sum of $353.07 damages and $123.80 costs. Erom this judgment defendants appealed to the general term of the city court, which decided that the judgment should be reversed and a new trial ordered, with costs to the appellants, to abide the event, unless within 10 days the plaintiff should stipulate to reduce his recovery to $246.31, with costs, in which case the judgment so modified should be affirmed, without costs. In accordance with this decision, plaintiff so stipulated, and the judgment of the trial court was reduced to the sum of $246.31 damages, with costs, and, as so reduced, affirmed, without costs of appeal. Defendants then appealed to this court, and plaintiff also appeals.
Howard A. Sperry, in pro. per., (Henry Cooper, of counsel.) Seligman t& Seligman, (Eugene Seligman, of counsel,) for defendants.
The plaintiff’s appeal should be dismissed. By giving the stipulation and entering the judgment for the amount to which it was reduced by the general term, he waived the right of appeal to this court. A party cannot avail himself of such parts of a judgment as are favorable to him, and appeal from those parts which are not. Grunberg v. Blumenlahl, 66 How. Pr. 62 ; Alexander v. Alexander, 104 N. Y. 643 , 10 N. E. Rep. 37 ; Harris v. Taylor, 20 Wkly. Dig. 379 ; Canary v. Knowles, 41 Hun, 542 . Defendants’ right of appeal to the general term of this court from the judgment entered, so far as it affirms, as reduced, the former judgment, is beyond ques
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tian. The plaintiff’s appeal is dismissed, with costs, and we direct that the defendants’ appeal be argued at the general term of this court to be held in March next.
Cases cited
- Grunberg v. Blumenlahl 66 How. Pr. 62 p. 271
- Alexander v. Alexander 104 N. Y. 643 p. 271