Monnet v. Merz — 43 N.Y. St. Rep. 59

Majority

p. 59

Prosper Monnet et al., App’lts, v. Henry Merz, Survivor, Resp't.

(New York Superior Court, General Term,

Filed January 11, 1892.)

Headnote

Appeal—Waiver.

A party by receiving the amount of a judgment recovered by him does not waive his right to appeal for the purpose of modifying the judgment so as to increase his recovery to equal the demand.

Motion to dismiss appeal.

The action was brought by plaintiffs as manufacturers in Switzerland against the defendants, their commission agents in this city, to recover $18,958.40. The defendants set up various defenses and counterclaims. The action was referred, and the referee awarded the plaintiffs $10,130.45, with interest, aggregating $12,276.29. In arriving at the sum due the referee disallowed portions of the plaintiffs’ demand and. modified some of their charges. The plaintiffs entered judgment on the report February 27, 1888. The defendants appealed to the general term, where after argument the judgment was affirmed and the plaintiffs entered the judgment of affirmance July 2, 1889. The defendants then appealed to the court of appeals, which court on June 2, 1891, made an order allowing a small deduction from the judgment, but substantially affirming it, and on June 18, 1891, the judgment as modified, with all costs and interest, was fully paid. On June 8, 1891, the plaintiffs appealed from the judgment for the purpose of reviewing the action of the referee in reducing the plaintiffs’ demand from $18,958.40 to $10,276.29.

The defendants moved to dismiss the appeal.

A. P. & W. Man, for motion; Arnoux, Bitch & Woodford, opposed.

As a rule, there can be but one judgment in an action. Johnson v. Farrell, 10 Abb. Pr., 384 ; Canfield v. Gaylord, 12 Wend., 236 ; Webb v. Bulger, 4 Hill, 588 . The referee having reduced the plaintiffs' demand from $18,958.40 to $12,276.29, either party aggrieved had the right to appeal, Code, § 1294, the defendants because they thought the sum awarded excessive, and the plaintiffs because they thought it inadequate. To appeal, it was necessary that judgment be entered, and this preliminary step was taken by the plaintiffs. The defendants appealed to the general term, and then to the court of appeals, and the judgment against them in a modified form was affirmed. The judgment was paid by the defendants, but in any event they were obliged to pay the money, and its acceptance stopped the running of interest, but did not disable the plaintiffs from appealing from so much of the judgment directed by the referee as reduced their demand. Dyett v. Pendleton, 8 Cow., 325 ; Clowes v. Dickenson,

p. 60

id., 331 ; Higbie v. Westlake, 14 N. Y., 281 ; McNamara v. Canada S. Co., 16 W. Dig., 86; Benkard v. Babcock, 2 Robt., 175; S. C., 17 Abb. Pr., 421 ; Barker v. White, 58 N. Y., 204 ; Hayes v. Nourse, 107 id., 578; 12 St Rep., 476 ; In reWaier Com’rs, 36 Hun, 534 . If a party seeks to set aside a judgment in toto after he has collected the amount by execution, the collection of the judgment is a waiver of the appeal, Knapp v. Brown, 45 N. Y., 209 , for the reason that “ the right to proceed on the judgment and enjoy its fruits and the right of appeal are not concurrent; on the contrary, wholly inconsistent An election to take one of these courses is, therefore, a renunciation of the other.” Bennett v. Van Syckel, 18 N. Y., 484 . But, if he prosecuted his appeal merely for the purpose of modifying the judgment so as to increase the amount of his recovery to equal the demand, it is not a waiver. Knapp v. Brown, supra; Genet v. Davenport, 60 N. Y., 194 Some judgments may be so connected and dependent upon one another that if cross appeals are taken they must be pursued pari passu, that there may be one record, one adjudication and one satisfaction, to-avoid double hearings and the splitting of appeals which, like the splitting of causes of action, is not approved. But the judgment directed by the referee in this instance is not so connected or dependent, as it is founded on separate and distinct items. It was neither claimed nor proved that the plaintiffs’ time to appeal had expired, and we assume therefore that it has not This being so, we cannot deprive them of a right which the statute expressly confers. For these reasons, the motion to dismiss the appeal must be-denied, with ten dollars costs.

Freedman, P. J., and Gildersleeve, J., concur.