
    MARIE PRESCOTT, Respondent, v. SINCLAIR TOUSEY, Appellant.
    
      Appeal—waiver of by recognition of judgment.
    
    Where the defendant pleads as a defense that the damages sought to be recovered were embraced in a judgment obtained in a former action, “ which judgment still remains in full force and effect, ” and_subsequcntly and before the time to amend as of course expires, serves a new answer omitting such defense, this will not be held inconsistent with, or a waiver of, a right of -appeal from said judgment in such former action.
    Before Sedgwick, Ch. J., Traux and O’Gorman, JJ.
    
      Decided February 5, 1883.
    Motion by respondent to dismiss appeal.
    The plaintiff brought this present action for libel, and recovered judgment. From this judgment defendant took the present appeal. The plaintiff, after the entry of judgment, brought another action for libel against the defendant. The defendant served an answer, in which he set up, as a defense, that the damagós sought in that action were embraced in the recovery in this action, the answer alleging, in due form, the recovery of the judgment, and that “ said judgment still remains in full force and effect.” To this defense there was a demurrer. The plaintiff served a notice that the demurrer was withdrawn, and it was not argued within twenty days from service of the demurrer, the defendant served an amended answer, which omitted the defence as to the judgment in the present action.' This amended answer was returned, but on motion the court at special term held that it was properly served.
    The ground of the present motion is, that the defense, in the original answer, was inconsistent with this appeal, one asserting a right under it, as if it were final, and valid, and the other seeking to reverse it.
    
      Marshall P. Stafford, for motion.
    
      William Fullerton, opposed.
   By the Court.—Sedgwick, Ch. J.

—My opinion is, that for the purpose of examining the ground in which this motion is urged it should be held that the original answer, setting up the recovery of damages in this action, was not an absolute and definitivé proffer of an issue on which the defendant intended to rely, but as to the issue in the seeond / case it was conditional upon the non-exercise of the right to amend it once, as of course. It was the same as if the defendant had had the power to express such a condition in the answer itself. Upon the amended answer being served, the first answer went for nothing ab origine, save as otherwise provided by section 542 of the Code of Civil Procedure. That provides that the amendment must be without prejudice to the proceedings already had. This refers only to proceedings in the action, and, of course, does not refer to the intrinsic qualities of the answer allowed to be withdrawn, and its effect as to rights claimed outside of the action itself. If this consideration be correct, then, it is not necessary to deny that if the defendant had, for any purpose or any length of time, taken an advantage from the judgment, as if it were valid, he could not retract, and the ¿lection would be final. The position is, that the advantage, it is alleged he could have, would be such as would arise from his setting it up to defeat the claim in the action, and that he does not set it up, substantially, until his power to change it has passed from him.

I am of opinion that the motion should be denied, with $10 costs.

Truax and O’Gorman, JJ., concurred.  