Sperry v. Hellman — 36 N.Y. St. Rep. 52

Majority

p. 52

Howard A. Sperry, Pl’ff, v. Theodore Hellman et al., Def’ts.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

Appeal—W aiveb.

The general term of the city court of New York reversed a "udgment in favor of plaintiff, and granted a new trial, unless he stipulated to reduce, in which case the judgment should be affirmed, without costs. Plaintiff so stipulated, the judgment was reduced and affirmed, and both parties appeal. Held, that plaintiff, by giving the stipulation and entering judgment for the reduced amount, waived the right of appeal to this court.

Appeal from a judgment of the city court.

On the trial of the action plaintiff recovered a judgment in the sum of $353.07 damages and $123.80 costs. From this judgment the defendants appealed to the general term of the city court, which court decided that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event, unless within ten 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 the respondents 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. The defendants then appealed to this court, and the plaintiff also ■appealed.

Henry Cooper, for pl’ff; Eugene Seligman, for def’ts.

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., 62 ; Alexander

p. 53

v. Alexander, 104 N. Y., 643 ; 5 N. Y. State Rep., 499; Harris v. Taylor, 20 N. Y. Weekly Dig., 379; Canary v. Knowles, 41 Hun, 542 ; 5 N. Y. State Rep., 13.

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 question.

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.

Allen, Bischoff and Pryor, JJ., concur.