
    ALEXANDER v. ALEXANDER.
    
      N. Y. Court of Appeals ;
    January, 1887.
    1, Appeal waived in partition foy accepting proceeds of sale.] A party • to an action of partition, who, after appealing from the interlocutory and the final judgment therein, accepts his share of. the proceeds of a sale under the judgment, thereby waives his appeal, if in any contingency he might upon a new trial, in case his appeal was successful, recover less than the amount so received.
    2. The same ; respondent's consent.] The respondent’s consent to the appellant’s acceptance of his share of the proceeds without prejudice to his appeal, is not shown by the respondent’s arranging with the appellant that the proceedings should not be stayed, but that a sale should be had, and the respondent's share collected by him upon his giving security for any restitution that might be ordered by the appellate court, nothing being said as to the appellant’s share of the proceeds.
    .Appeal by the defendant from a judgment in an action of partition.
    The Action was brought for partition of the real estate left by William Alexander, who died February 23, 1885, intestate, leaving two sons, the plaintiff, George R, and ' defendant, Samuel G., his only heirs at law, and the defend- ■ ant, Hannah Alexander, .his widow.
    
      The principal issues were upon the matter of advancements made by the decedent before his death, to plaintiff and defendant respectively. The defendant claimed that advancements had been made to the plaintiff. The plaintiff contested that claim, and on his part claimed that the defendant had received advancements. This was contested by defendant.
    It was found and adjudged as claimed by defendant, that the plaintiff had been advanced $15,000, and as claimed by the plaintiff, that the defendant had been advanced $57,500.
    Setting off the advancements to the plaintiff against those to the defendant, it was adjudged that, after providing for the widow’s dower, the plaintiff was entitled first to a share of the value of $42,500, and plaintiff and defendant each to one-half the residue.
    The defendant appealed to the general term from so much of the judgment as awarded to the plaintiff $42,500, before coming to an equal division with him.
    The judgment awarded to the defendant costs amounting to $160.65, and an extra allowance of $1,250.
    The one-half the residue and the costs and allowance having been received and accepted by the defendant since he took his appeal, the plaintiff moved to dismiss the appeal upon the ground that such acceptance was a waiver of and extinguished his right to prosecute the appeal. The motion was denied by the general term, saying, that “ the general rule, that when a party accepts the beneficial portion of a judgment or order he waives his appeal, .... is subject to this qualification, that when the thing or portion accepted is not inconsistent with the appeal, it is nota waiver,” and that there was “ nothing inconsistent between the appeal and this receipt of the money to which the appellant was at all hazards entitled to. There is no objection to the judgment, except in the single fact that the charge of the value of the property deeded to the appellant by deceased was wrong, and should be reversed. If that is done, the sole effect will be to increase the sum to which the appellant is entitled.” Decision reported in (1 N. Y. State Rep. 510).
    From the order denying the motion to dismiss the appeal, plaintiff appealed.
    
      Josiah F. Marean, for the plaintiff, appellant.
    
      Daniel T. Manning, for the defendant, respondent.
   Finch, J.

The motion to dismiss this appeal is founded upon the fact that the appellant, who was defendant in an action of partition, and, by the judgment rendered, was awarded a proportion of the proceeds resulting from a sale ordered by the court, accepted those proceeds after his appeal was perfected, and took also the costs allowed to him by the judgment. His notice of appeal was served March 13, 1886, and the referee appointed to make the sale swears that he paid the share awarded to the defendant by two checks, dated respective!)' the 17th and 24th of the following April, both of which have been paid by the bank upon the defendant’s indorsement.

It is not denied that he could not be permitted at the same time to take the fruits of the judgment, and appeal from it as erroneous or wrong ; but it is contended in the present case that no such inconsistency exists, because the whole controversy concerns a fund other than the residue, a share of which the defendant accepted ; or, in substance, that what the defendant took, he would be entitled to retain in any conceivable disposition of the case (Clowes v. Dickenson, 8 Cow. 328 ; Knapp v. Brown, 45, N. Y. 207).

We are not able to concur in a view of the situation which would make those authorities applicable. The litigation involved a question of advancements. The court found that $57,500 had been advanced to the defendant, and $15,000 to the plaintiff; and awarded to the latter the difference of $42,500, to be first paid out of the proceeds of sale for equality of partition, dividing the residue equally between the two parties. The defendant’s notice of appeal is from the interlocutory and the final judgment, and not from any alleged separable or independent portion which left the rest unaffected and unassailed.

So far as the division of proceeds is concerned, we cannot discover any such separable or independent portion to which the appeal could have been limited. The amount of the residue must necessarily depend upon the amount of the advancements adjudged to have been made. Those to the defendant are alleged in the complaint to have consisted of certain parcels of real estate, the value of which is not stated, and which value necessarily became the subject of proof. If the judgment should be reversed, the plaintiff, on a new trial, will be at liberty to show, and may possibly establish, that such value was greater than the $57,500, or that the advancements to himself were less than the $15,000, and in either event the sum first payable to him from the proceeds would be increased, and as a consequence, defendant’s share of the residue lessened.

He stands thus in the attitude of holding the fruits of the judgment to which he may not be entitled if his appeal succeeds, and yet persisting in his appeal. The trouble is that he cannot gain the right to recover more, without incurring the hazard of recovering less.

But it is further insisted that he took his share of the residue with the plaintiff’s consent, and under an arrangement which- nevertheless contemplated the prosecution of the appeal. The proof of this is sought to be deduced from an affidavit of the defendant’s attorney. He swears that just before the entry of judgment he declared his client’s purpose to appeal ; and thereupon the plaintiff’s attorney expressing a desire not to have proceeding stayed, and to be at liberty to collect and receive the sum awarded, it was finally agreed that he might do so upon assigning to the referee in trust, a mortgage as security for any restitution which might be ordered. That assignment, and a covenant of restitution, were executed April 1, 1886, and after the appeal had been taken. The affidavit further shows that the plaintiff’s attorney frequently said- that there was no need of tying up the proceeds of the sale, but that a speedy sale and distribution was desirable.

It is to be noticed that the affidavit asserts no negotiations, except as to the right of the plaintiff to get his money, and to prevent a stay which would hinder that result, and does not claim that any thing was said, or any agreement made relating to the share awarded to the defendant. It shows only that the plaintiff wanted his money ; that lie could not get it if the defendant, on his appeal, effected a stay of proceedings ; that security was given to obviate the need of that stay ; and what was said about not tying up proceeds and expediting the appeal, naturally referred to that negotiation, and related to that effort. The defendant’s silence as to his own share is made more emphatic by the affidavit of the plaintiff’s attorney that he never uttered a word about defendant’s treatment of the residue awarded to him, or in any manner recognized the appeal after that share was accepted. It is not possible to infer a consent or waiver. The defendant docs not claim that his act was inadvertent, and without consciousness of the question it might raise. If he did claim that, and offered to restore the money received to its official custodian pending the appeal, the question would assume a more hopeful shape. But he stood, and stands here, upon his right. While we cannot help thinking that some misunderstanding has existed, and should be glad to sustain the appeal taken, we can find no just ground upon which to rest such a decision.

The order of the general term should be reversed, and the appeal dismissed, with costs.

All the judges concurred.

Order reversed, and appeal dismissed.  