Knapp v. . Brown
New York Court of Appeals
Appeal from a judgment of the General Term of the Court of Common Pleas of the city of New York, affirming a judgment entered upon the report of a referee as to one defendant, and dismissing plaintiff’s appeal as to the other. The respondent, Mrs. Jackson, leased certain property in the city of Bew York to the defendant Brown, for five years, and afterward for two more.
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Appeal from a judgment of the General Term of the Court of Common Pleas of the city of New York, affirming a judgment entered upon the report of a referee as to one defendant, and dismissing plaintiff’s appeal as to the other. The respondent, Mrs. Jackson, leased certain property in the city of Bew York to the defendant Brown, for five years, and afterward for two more. By a provision in the lease, the lessee stipulated to make, at his own expense, certain alterations and improvements in the buildings, which were specified in the lease. The lessee, Brown,. contracted with the plaintiff, to…
1Opinion of the CourtGroveb, J.
The issuing of an execution by the appellant upon the judgment rendered in his favor, and the collection of the amount thereof after bringing an appeal therefrom by him, was inconsistent with and a waiver of his right further to prosecute the appeal. By the former he enforced the judgment as a valid judgment and secured to himself the fruits thereof as such. By the latter he seeks wholly to reverse and annul the judgment for error therein. These acts, it is obvious, are wholly inconsistent, the one with the other, and upon principle, it is clear that the same party cannot pursue both. But it…
2Cases cited2 opinions
- Suydam v. . BarberNew York Court of Appeals · 1858
- Dyett v. PeneletonCourt for the Trial of Impeachments and Correction of Errors · 1826
3Cited by49 opinions
- Burkitt v. . HarperNew York Court of Appeals · 1879
- Walnut Irrigation Dist. v. BurkeCalifornia Supreme Court · 1910
- Cornell v. . BarneyNew York Court of Appeals · 1884
- Paerdegat Boat & Racquet Club, Inc. v. ZarrelliAppellate Division of the Supreme Court of the State of New York · 1981
- Barker v. . WhiteNew York Court of Appeals · 1874
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