Hayes v. Nourse

• Decision Date: 23 December 1887
• Citation: 14 N.E. 508,107 N.Y. 577
• Parties: HAYES v. NOURSE.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 577

14 N.E. 508

HAYES

v.NOURSE.

Court of Appeals of New York.

December 23, 1887.

Appeal from general term, court of common pleas, city and county of New York.

An action was brought by Ellen T. Hayes against Charles J. Nourse, Jr. The judgment below was in the plaintiff's favor. The defendant appealed. This is a motion to dismiss the appeal as irregular and void, for the reason that the judgment for which said appeal purports to be taken, was satisfied of record before the service of notice of appeal. Judgment was recovered by plaintiff against defendant in the court of common pleas on April 4, 1887, for $3,528.26, from which the defendant took an appeal to the general term of said court, where the judgment was affirmed, and on June 10, 1887, a judgment of affirmance thereof, and for $84.24, costs of said appeal, was entered. On June 15th the defendant voluntarily paid both of said judgments, applied to plaintiff's attorney for and received satisfaction pieces thereof, and on the same day filed the same, and caused said judgments to be satisfied of record, No process has been issued nor proceeding taken to enforce payment of said judgments. On September 27, 1887, the defendant served notice of appeal to this court.

Strong & Cadwalader, for appellant.

Mr. Hilton, for respondent.

DANFORTH, J., ( after stating the facts as above.)

The defendant's practice in paying the judgment before appealing from it is not to be condemned. It is rather to be encouraged. A party who recovers at the trial term, and, against his adversary's appeal, sustains the recovery at the general term, might fairly be deemed entitled to the fruits of his action without further delay. The law, however, allows one more appeal; but, although it is taken, the successful party may nevertheless enforce his judgment by execution, and so collect its award, unless the defeated party secures its ultimate payment by a deposit of money or an undertaking. Why may he not simplify the matter by placing the funds at once in the hands of the party who, if the appeal fails, will be uitimately entitled to them? By so doing he will save the costs of execution, and do no harm to his creditor. We think he should not, by a temporary submission to the decision of the court, be placed in a worse position than if he awaited execution and settled it with sheriff's fees. In Dyett v. Pendleton, (Court of Errors,) 8 Cow. 326, an execution had in fact issued; but the court held that even a voluntary payment of the judgment would have been no reason against a writ of error, and in a subsequent case (Clowes v. Dickenson, 8 Cow. 328) COLDEN, senator,...