O'Brien v. Smith

New York Supreme Court

O'Brien v. Smith

13 N.Y.S. 410, 37 N.Y. St. Rep. 43, 59 Hun 624, 1891 N.Y. Misc. LEXIS 1146

DecidedFebruary 13, 1891

StatusPublished

This text of 13 N.Y.S. 410 (O'Brien v. Smith) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Brien v. Smith, 13 N.Y.S. 410, 37 N.Y. St. Rep. 43, 59 Hun 624, 1891 N.Y. Misc. LEXIS 1146 (N.Y. Super. Ct. 1891).

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Opinion

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 counter-claim 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. We 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 ease of a new trial the question might be raised by supplemental pleading, or in some other proper manner. 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 case, and the motion to» dismiss should be denied, with costs. All concur.

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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 counter-claim 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. We 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 ease of a new trial the question might be raised by supplemental pleading, or in some other proper manner. 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 case, and the motion to» dismiss should be denied, with costs. All concur.

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Bluebook (online)

13 N.Y.S. 410, 37 N.Y. St. Rep. 43, 59 Hun 624, 1891 N.Y. Misc. LEXIS 1146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-smith-nysupct-1891.