Negley v. Short — 27 N.Y. St. Rep. 274

Majority

p. 274

James S. Negley, Resp’t, v. John C. Short, App’lt.

(City Court of New York, General Term,

Filed December 2, 1889.)

Headnote

1. Appeal—Waiver op right to.

Defendant’s default was opened on terms, and he thereupon paid the ¡ costs imposed and served Bis answer. Held, that he thereby waived his. right to appeal from the order.

2. Accord—When not a bar.

Where notes given upon an executory accord and satisfaction are not accepted, the accord furnishes no bar to an action oh the preceding;, liability.

Appeal from an order opening default upon terms.

James Parker, for app’lt; Morris Cooper, for resp’t.

By the order appealed from the defendant was-permitted to come in and defend on the merits upon the following-terms : .

First. Upon payment, within three days after service of the. order, of the costs and disbursements included in the judgment, . and upon the service of his answer at the same time.

• Second. The judgment and all proceedings founded thereon to-stand as security.

Third. The actions to go on the day calendar Hovember 11th, and to be tried when reached.

The appellant concedes that he has paid the costs and served his answer in compliance with the order. That ends this appeal. By submitting to the terms of the order the appellant waived his appeal. See Grunberg v. Blumenthal, 66 How. Pr., 62 . The case-of Hayes v. Nourse, 107 N. Y., 577 ; 12 N. Y. State Rep., 476, has no application.

A judgment recovered must be paid, either voluntarily or by execution. In such a case a voluntary payment does not affect the appeal from the judgment. But here there was no compulsion upon the part of the appellant to pay. It was a favor granted him with, which he could comply or decline to do so. Having availed himself of the favor extended, he cannot be heard upon appeal in opposition thereto. Besides, the discretion exercised was not. abused. It is an elementary rule that an agreement of accord ex-ecutory, to be performed at a future day, with a complete tender of performance, is no bar to an action unless performance is accepted. 3 Blackst. Comm., 15. In this ease the notes given upon the supposed accord were never accepted, inasmuch as the former notes were not surrendered, nor any other act done showing an acceptance, and plaintiff was at no time deprived of his right tp continue his actions. The appeal will, therefore, be dismissed, with ten dollars costs and disbursements.

Hehrbas and Holme, JJ., concur.