Benkard v. Babcock
The Superior Court of New York City
Appeal from a judgment This action was brought by James Benkard and Benjamin IT. Hutton against Charles H. Babcock and others, to recover the rent which the latter had covenanted to pay in a lease of a store or warehouse in the city of Hew York. By the lease the plaintiffs had covenanted that the sub-cellar of the premises should be free from percolation of water through the walls, &c.
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Appeal from a judgment This action was brought by James Benkard and Benjamin IT. Hutton against Charles H. Babcock and others, to recover the rent which the latter had covenanted to pay in a lease of a store or warehouse in the city of Hew York. By the lease the plaintiffs had covenanted that the sub-cellar of the premises should be free from percolation of water through the walls, &c. The defendants set up in their answer that this covenant had been broken, and claimed damages therefor in effect as a counter-claim. The plaintiffs having recovered a verdict for a part of the amount they…
1Opinion of the Court
By the Court.*—Robertson, Ch. J.
It is claimed by the defendants that the plaintiffs have waived their appeal in this case by accepting from them the amount of the verdict in favor of the latter, with costs. Humerous authorities have been cited to us on the argument to sustain that position, but they will all be found to be cases where an appellant had attempted actively to enforce either the whole of a judgment-order or decree in his favor, or else some part thereof, connected with and dependent upon such other part thereof as he may have appealed from; or else where he had availed himself of…
2Cases cited16 opinions
- Fish v. DodgeNew York Supreme Court · 1847
- Lincoln v. Saratoga & Schenectady Rail RoadNew York Supreme Court · 1840
- Clark v. . BairdNew York Court of Appeals · 1853
- Bennett v. . Van SyckelNew York Court of Appeals · 1859
- Wood v. HitchcockNew York Supreme Court · 1838
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3Cited by1 opinion
- Monnet v. MerzThe Superior Court of the City of New York and Buffalo · 1892