Majority
p. 256PROSPER MONNET, et al., Appellants v. HENRY MERZ, as Survivor, Etc., Respondent.
Headnote
Motion to dismiss appeal—Whenparty who has recovered and collected a judgment not estopped from appealing therefrom.Where the plaintiffs prosecute an appeal from the judgment for the purpose of modifying it so as to increase the amount of recovery until it equalizes their demand, the fact that the judgment upon the appeal of the defendant has been modified and affirmed, and the amount thereof paid to the plaintiffs, does not constitute a waiver of their right of appeal, in a case where the judgment rendered was founded on items separate and distinct from those which constitute the basis of the plaintiffs’ contention on appeal.
It seems that a party seeking to set aside a judgment in toto waives his appeal by collecting the amoirnt of the judgment, because the right to proceed on the judgment and enjoy its fruits and the right of ajDpeal are not concurrent but wholly inconsistent. An election to take one of these courses is a renunciation of the other.
p. 257Before Freedman, P. J., McAdam and Gildersleeve, JJ. Decided January 11, 1892.
Motion by defendant to dismiss the plaintiff’s 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 defences 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 $19,276.29.
The defendants moved to dismiss the appeal.
A. P. & W. Man, attorneys for respondent, for motion.
Arnoux, Ritch & Woodford, attorneys for appellants, opposed.
As a rule, there can
p. 258
be but one judgment in an action, Johnson v. Farrell, 10 Abb., 334 ; Canfield v. Gaylord, 12 Wend., 236 ; Webb v. Bulger, 4 Hill, 588 . The referee having reduced the plaintiffs’ demand from $18,958.40 to $10,276.29, 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, Ib., 331; Higbie v. Wrestlake, 14 N. Y., 281 ; McNamara v. Canada S. Co., 16 Week. Dig, 86; Benkard y. Babcock, 2 Robt., 175; S. C. 17 Abb., 421 ; Barker v. White, 55 N. Y., 204 ; Hayer v. Noise, 107 Ib., 578; In re Water Comr’s, 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, 48 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 depend
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ent 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., concurred.