Poole v. Belcha

• Decision Date: 12 February 1892
• Citation: 30 N.E. 53,131 N.Y. 200
• Parties: POOLE v. BELCHA.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 200

30 N.E. 53

POOLE

v.BELCHA.

Court of Appeals of New York.

Feb. 12, 1892.

Appeal from supreme court, general term, third department.

This was an action by Robert B. Poole against Beriah B. Becha to recover possession of personal property. From a verdict for defendant, plaintiff appealed to the general term. The general term entered judgment on the verdict. The case was then compromised by the parties, and the judgment discharged. Afterwards defendant's attorney gave notice that a motion would be made at the general term for an order striking the appeal from the calendar, and for an affirmance of the judgment. The order having been granted, plaintiff appeals to this court Reversed.

James Coupe, for appellant.

Eugene E. Sheldon, for respondent.

O'BRIEN, J.

This is an appeal from an order of the general term striking an appeal to that court from the calendar, and affirming with costs a judgment for the defendant, entered upon a verdict. The action was brought to recover certain specific personal property, which was delivered to the plaintiff at the commencement of the action. On the trial the plaintiff failed, and a verdict was rendered for the defendant. A motion was made by the plaintiff for a new trial on the minutes, which was denied June 24, 1887. The plaintiff appealed to the general term from this order July 23, 1887. Judgment was entered on the verdict December 1, 1887, but no appeal was taken from this judgment. October 25, 1887, the plaintiff served a proposed case, containing exceptions; and subsequently amendments thereto were served by the defendant, but the case was not filed or certified, and no copy was served on the defendant's attorney. On an affidavit showing these facts the defendant's attorney gave notice of a motion to be made at the general term September 8, 1891, for an order striking the appeal from the calendar, and for an affirmance of the judgment. The verdict upon which the judgment was entered was for $286.28, the value of the property, as found by the jury. The motion to strike the cause from the calendar and affirm the judgment was met by an affidavit on the part of the plaintiff, showing that on September 2, 1891, the plaintiff paid to the defendant $300, and settled the case; that upon such settlement it was agreed that each party should pay his own attorney; and there, upon the defendant executed and delivered to the plaintiff a general release under seal, a copy of which was attached to the affidavit. It is as broad and comprehensive in its terms as words could make it. It releases and discharges all actions, causes of action, suits, debts, bonds, judgments, executions, controversies, and demands whatsoever, in law or in equity, which the defendant then or ever had against the plaintiff, or might have thereafter. This instrument was duly acknowledged, and the question is whether the general term, under such circumstances, could properly have made the order appealed from. The payment of the $300 by the plaintiff to the detendant, and the execution and delivery of the release, operated, as between the parties at least, to satisfy and discharge the judgment, and to discontinue the appeal, unless the judgment and appeal, notwithstanding the release, is kept on foot by the provisions of section 66 of the Code of Civil Procedure. This section provides that ‘the attorney who appears for a party has a lien upon his client's cause of action or counter-claim, which attaches to a verdict, report, decision, or judgment in his...