Brewster v. Wooster

56 N.Y. St. Rep. 844

Opinion

Per Curiam.

The authorities on which the respondent relies in support of the motion to dismiss the appeal all rest upon the proposition that a party cannot do any act inconsistent with his appeal and yet claim the benefit of the appeal. The case before us does not fall within the reason of this rule. Appellant's plea in another action, of the recovery of the judgment in question, is not used as a weapon, but as a shield. It is based upon the maxim that no man should be twice impleaded for the same cause of action. It is a plea in bar, and not in estoppel. As a plea in bar it is not inconsistent with the prosecution of the appeal.

The motion to dismiss the appeal should be denied, with ten dollars costs.