Schermerhorn v. Wheeler

Robinson, J. The voluntary payment or performance of the terms of a judgment is ordinarily no waiver of an appeal therefrom (Champion v. Plymouth Cong. Soc. 42 Barb. 441; Clowes v. Dickenson, 8 Cow. 328; Higbie v. Westlake, 14 N. Y. 281; Benkard v. Babcock, 2 Robt. 135 ; Armes v. Chappel, 28 Ind. 469; Dickensheck v. Kaufman, 29 Ib. 154). It is only where the judgment, from parts of which an appeal is taken, is such that it must be wholly reversed if the parts appealed from are erroneous, and where the other parts favorable to the appellant have been enforced, that an appeal cannot be sustained, or generally in cases where the appellant has accepted or availed himself of such benefits thereunder as are inconsistent with the reversal sought, that he is precluded through compliance with or acceptance of the terms of the judgment from maintaining his appeal (Bennett v. Van Syckel, 18 N. Y. 481; Knapp v. Brown, 45 N. Y. 207). The payment or performance of an entirely adverse judgment is but a present submission to the decision sought to be reversed. The provision of the code relating to this appeal (§ 369), contemplates that such payment may have been made, and instead of giving any countenance to the idea that it should interfere with the right of appeal, by § 330, generally applicable to all [474] appeals, express provision is made for a restitution of all rights lost h,y the erroneous judgment, and including cases where satisfaction has been entered of record before the appeal (Sheridan v. Mann, 5 How. Pr. 201). The motion should be denied, with $10 costs. Larremore, J., concurred. Motion denied.