Monnet v. Merz

By the Court.—McAdam, J. As a rule, there can [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 [259] 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.