Brewster v. Wooster — 26 N.Y.S. 912

Majority

p. 912

BREWSTER v. WOOSTER.

(Superior Court of New York City, General Term.

December 29, 1893.)

Headnote

Appeal—Dismissal—Pleading Judgment in anotiieb Action.

Pleading in bar a judgment in another action is not inconsistent with am appeal taken by defendant from the judgment so pleaded.

Appeal from special term.

Action by William J. Brewster against G-eorge H. Wooster. From a judgment in favor of plaintiff, defendant appeals. Plaintiff' moves to dismiss the appeal.

Denied.

Argued before FREEDMAN and McADAM, JJ.

T. B. Browning, for appellant.

Arnoux, Ritch & Woodford, for respondent.

The authorities on which the respondent relies-in support of the motion to dismiss the appeal all rest upon the proposition that a party cannot do any act inconsistent with his-appeal, and yet claim the benefit of the appeal. The case before us does not faff within the reason of this rule. Appellant’s plea in another action of the recovery of the judgment in question is not.

p. 913

used as a weapon, but as a shield. It is based upon the maxim that no man should be twice impleaded for the same cause of action. It is a plea in bar, and not in estoppel. As a plea in bar it is not inconsistent with the prosecution of the appeal. The motion to dismiss the appeal should be denied, with $10 costs.