Schermerhorn v. Wheeler
New York Court of Common Pleas
Motion to dismiss an appeal from the 8th Judicial District Court. The motion to dismiss the appeal was made on an affidavit setting up the following facts : Plaintiff recovered a judgment against the defendant in the 8th Judicial District Court of New York city, on Novemher 13th, 1873. Defendant appealed to this court, and the appeal was heard at the general term, in May, 1874, and the judgment affirmed.
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Motion to dismiss an appeal from the 8th Judicial District Court. The motion to dismiss the appeal was made on an affidavit setting up the following facts : Plaintiff recovered a judgment against the defendant in the 8th Judicial District Court of New York city, on Novemher 13th, 1873. Defendant appealed to this court, and the appeal was heard at the general term, in May, 1874, and the judgment affirmed. The defendant then went voluntarily to the plaintiff and paid the judgment, and took from the plaintiff a satisfaction piece of the judgment, and also paid the costs of the appeal. Defendant…
1Opinion of the CourtRobinson, 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…
2Cases cited7 opinions
- Bennett v. . Van SyckelNew York Court of Appeals · 1859
- Knapp v. . BrownNew York Court of Appeals · 1871
- Higbie v. . WestlakeNew York Court of Appeals · 1856
- Clowes v. DickensonCourt for the Trial of Impeachments and Correction of Errors · 1826
- Champion v. Plymouth Congregational SocietyNew York Supreme Court · 1864
2 more not listed; retrieve them via the Exa API.
3Cited by1 opinion
- In re FreemanDistrict Court, N.D. New York · 1902