Majority
p. 844William J. Brewster, Resp’t, v. George H. Wooster, App’lt. (New York Superior Court, General Term, Filed December, 1893.)
Headnote
Appeal—Dismissal.The subsequent plea of the recovery of a judgment as a bar to another action is not inconsistent with the prosecution of an appeal from such judgment.
Plaintiff recovered a judgment against the defendant for $22,559.05. The defendant appealed from the judgment and thereafter obtained leave to interpose a supplemental plea in bar to another action setting up the recovery of the judgment. The plaintiff thereupon moved to dismiss the appeal on the ground that by the supplemental plea the defendant _ had taken a benefit from the judgment which estopped him from disputing its correctness.
Arnoux, Riich & Woodford, for motion.
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 fall within the reason of this rule. Appellant's plea in another action, of the recovery of the judgment in question, is not 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 ten dollars costs.