
    Michael O’Brien, Resp’t, v. Robert J. Smith, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 13, 1891.)
    
    1. Appeal—Dismissal.
    On motion to dismiss an appeal, the court cannot go outside of the record further than to ascertain whether there has been a waiver of the appeal.
    2. Same—Waiver.
    The mere fact that the appellant has brought another action to recover upon the cause of action set up as a counterclaim after the counterclaim had been stricken out for failure to furnish a bill of particulars, does not constitute a waiver of his right to appeal, and his appeal should not be dismissed because of the bringing of such action.
    Motion to dismiss appeal.
    
      Edward W. S. Johnston, for motion; Magner & Hughes and C. Donohue, opposed.
   Barrett, J.

The ground of the motion to dismiss is that since the appeal was .taken the defendant, appellant, has brought an action in the city court of Brooklyn against the present plaintiff to recover upon the same cause of action set up by way of counterclaim herein. It appears that this counterclaim was stricken out at special, term for failure to furnish a bill of particulars thereof, as required by an order duly made upon motion. Wo cannot see why the defendant, appellant, should be deprived of his right to review the judgment appealed from because of the bringing of such an action. It is his only remedy, if he is in error in his present contention, and he has stipulated to stay proceedings in the other action until the determination of the appeal here, and in case a new trial is awarded, until final judgment thereon. 'There is no force in the objection that the defendant, appellant, waived this appeal by the bringing of such an action. Even if the claim here made is in some respects inconsistent with the position assumed in the other action, that is no reason for the dismissal of an appeal which seeks to review a completed record made up before such inconsistent action was brought. In case of a new trial the question might be raised by supplemental pleading, or in some other proper inanner. Upon appeal, however, we cannot go. outside of the record on a motion to dismiss, further than to ascertain whether there has been a waiver of the appeal.

There has been no such waiver in this casé, and the motion to dismiss should be denied, with costs.

Van Brunt, P. J., and Bartlett, J., concur.  