
    Cornelius P. Schermerhorn against Clark B. Wheeler.
    The payment or performance of an entirely adverse judgment is not a waiver or forfeiture of any right to prosecute an appeal from such judgment.
    
      So held in an appeal from a District Court where the judgment appealed from was affirmed, and the appellant then paid the judgment and the costs of appeal, and applied for and obtained a reargument.
    Motion to dismiss an appeal from the 8th Judicial District Court.
    The motion to dismiss the appeal was made on an affidavit setting up the following facts :
    Plaintiff recovered a judgment against the defendant in the 8th Judicial District Court of New York city, on Novemher 13th, 1873. Defendant appealed to this court, and the appeal was heard at the general term, in May, 1874, and the judgment affirmed. The defendant then went voluntarily to the plaintiff and paid the judgment, and took from the plaintiff a satisfaction piece of the judgment, and also paid the costs of the appeal. Defendant then applied to the general term for a reargument of the appeal, and in November, 1874, such a re-argument was ordered.
    Plaintiff now claimed that, by voluntarily paying the judgment, the defendant had forfeited his right to further prosecute his appeal.
    
      C. P. Schermerhorn, for the motion.
    
      C. B. Wheeler, opposed.
   Robinson, J.

The voluntary payment or performance of the terms of a judgment is ordinarily no waiver of an appeal therefrom (Champion v. Plymouth Cong. Soc. 42 Barb. 441; Clowes v. Dickenson, 8 Cow. 328; Higbie v. Westlake, 14 N. Y. 281; Benkard v. Babcock, 2 Robt. 135 ; Armes v. Chappel, 28 Ind. 469; Dickensheck v. Kaufman, 29 Ib. 154). It is only where the judgment, from parts of which an appeal is taken, is such that it must be wholly reversed if the parts appealed from are erroneous, and where the other parts favorable to the appellant have been enforced, that an appeal cannot be sustained, or generally in cases where the appellant has accepted or availed himself of such benefits thereunder as are inconsistent with the reversal sought, that he is precluded through compliance with or acceptance of the terms of the judgment from maintaining his appeal (Bennett v. Van Syckel, 18 N. Y. 481; Knapp v. Brown, 45 N. Y. 207). The payment or performance of an entirely adverse judgment is but a present submission to the decision sought to be reversed. The provision of the code relating to this appeal (§ 369), contemplates that such payment may have been made, and instead of giving any countenance to the idea that it should interfere with the right of appeal, by § 330, generally applicable to all appeals, express provision is made for a restitution of all rights lost h,y the erroneous judgment, and including cases where satisfaction has been entered of record before the appeal (Sheridan v. Mann, 5 How. Pr. 201).

The motion should be denied, with $10 costs.

Larremore, J., concurred.

Motion denied.  