
    Townsend against The Masterson, Smith and Sinclair Stone Dressing Company and others.
    The Court of Appeals has the power to enforce a mutual stipulation, made between the parties in the court from which the appeal is taken, by which they agreed that the decision in such case should be final, and that no appeal should be taken. The duty of hearing appeals, involves the jurisdiction to determine whether a particular case is properly before the court on appeal, and to dismiss it, if brought in violation of the agreement of the parties.
    Motion by the defendants to dismiss an appeal taken by the plaintiff, on the ground that the parties had, intermediate the judgment of the special term and the hearing of an appeal at the general term, stipulated that no appeal should be taken to this court. The action was brought in the Superior Court, among other things to compel the defendant, Abernethy, who, as a trustee for the defendant, The Masterson Company, held a mortgage for a large amount which the plaintiff had executed, to cancel that mortgage, on the ground that it had been satisfied. The mortgage was given to secure the performance, on the part of the defendant, of certain engagements for furnishing dressed stone for the plaintiff. The defendant set up, by way of counter-claim, that the plaintiff was indebted to it on account of the transaction referred to, and that the mortgage was a security in its hands for that indebtedness.
    The case was tried before a referee, who reported, June 2, 1856, that there was due the defendant, The Masterson Company, $3,647.20, and that on payment of that amount, and not otherwise, the plaintiff was entitled to a cancellation of the mortgage. Judgment was entered in accordance with the report at the special term, both parties having excepted to certain decisions made against them. On the 25th of June, 1856, the attorneys for both parties signed a stipulation, allowing twenty days to the parties to prepare and serve a case, and that The Masterson Company might use the plaintiff’s case to insert their exceptions. On the 21st of July, 1856, the attorneys for the respective parties signed the stipulation upon which the present motion is based, which, after giving the title of the action in the Superior Court, is in the following words: “ It is hereby mutually stipulated that the appeal in this cause from the referee’s report be brought to a hearing before the general term of this court as soon as practicable, and that no appeal shall he taken, from the decision of the general term to the Court of Appeals. It is further stipulated that this case shall be settled according to the decision of the general term of this court, under its directions. July 21, 1856.” The plaintiff, in his affidavit, read upon the motion, admitted that the stipulation was signed on his behalf" by his direction. The plaintiff’s notice of appeal to the general term was given on the 6th and the defendant’s on the 8th of August, 1856. On the hearing at the general term the stipulation was read to the court by the defendant’s counsel, and after the decision of the general term, the court, on the motion of the defendant’s counsel, made an order that said stipulation should be incorporated into the judgment roll. By the judgment of the general term, upon the appeal, that part of the judgment entered upon the referee’s report, by which the amount before mentioned was found due to the defendant, was affirmed; and it was ordered that the defendant recover that sum against the plaintiff, with costs; but the general term held that only the sum of $35.84 was secured by the mortgage, and the judgment directed that it should be canceled on the payment of that sum, with costs. It was shown upon this motion that the mortgage had been canceled pursuant to the judgment.
    
      H. A. Crane, for the motion.
    
      A. Thompson, contra.
   Donio, C. J.

The suggestion made on the argument by the plaintiff’s counsel, that the stipulation had relation only to the appeal on his part, seems not to be well founded. When the stipulation was signed, neither party had served any notice of appeal to the general term. Both parties had, however, taken exceptions to decisions of the referee, and it is clear from the stipulation in regard to time for making a case, and from the terms of the other stipulation upon which the motion is founded, that both parties contemplated appealing to the general term. That stipulation was mutual, therefore, in its terms and effect. Both parties concurred that they had reason for complaining of the report of the referee, and they deliberately agreed that each should be content with what the general term should decide, and that they would not protract the litigation by an appeal to this court.

It is insisted by the defendants’ counsel that the jurisdiction of this court is limited to hearing appeals upon their merits, and that it cannot enforce stipulations made by the parties in the subordinate courts. But certainly, the duty of hearing appeals involves the jurisdiction of determining whether a particular case is properly before us on appeal. It is perfectly competent for the parties to determine in the preliminary steps of the litigation, whether they will place the question in dispute in a condition to be reviewed here. They may omit to except to the decision of the court before whom the primary decision is made, or after excepting they may waive or abandon-the exception absolutely or to a modified extent. There is. no reason, therefore, why they may not mutually agree that exceptions which have been taken shall only be effectual to sustain an appeal to the general term of the same court. This is what has been done in effect in this case. We should not regard any less authentic evidence of such an arrangement than a plain stipulation in writing; but when we are furnished with such evidence, and especially where the court from which the appeal is taken has sanctioned the agreement by making it a part of the record, we ought to enforce it by refusing to pass upon the questions which have thus formally been waived.

The appeal must be dismissed with costs, to be paid by the appellant.

Appeal dismissed.  