12 N.Y. St. Rep. 117 | New York Court of Common Pleas | 1887
If an appellant seeks to reverse a judgment, he must abstain from enforcing those parts of it that are in his favor, if they be so connected with or so dependent upon the parts that he assails, that they ought all to stand or fall together (McNamara v. Canada Steamship Co., 11 Daly 297; Knapp v. Brown, 45 N. Y. 210; Barker v. White, 58 N. Y. 211; Matter of N. Y. Cent. R. Co., 60 N. Y. 117).
The respondent moves to dismiss the appeal in this case on the ground that the appellant, though the judgment was in all respects-adverse to him, has pleaded it as a partial defense in an action in which one Robert Gr. Cornell is the plaintiff, and the defendant in this suit is the defendant. How the respondent can be prejudiced by this use of the judgment in this action, I am unable to discover. If this judgment be right, the respondent can enforce it without reference to the proceedings that have been had in the other action. He is not a party to that action; to him all the proceedings therein are' res inter alios acta, and he is not affected in any way by them. Moreover, this judgment contained no provision in the appellant’s favor, and the use he made of it was not to secure an advantage that it conferred upon him, but to show the court in the other action that he had been adjudged in this action to be liable to the plaintiff here for some of the very damages that the plaintiff in the other action was seeking to recover from him. But, as I have already said, the plaintiff could not be injured by the appellant’s use of the judgment, and hence he has no right to complain of that use. The party aggrieved is the one to complain. The motion to restrain the appellant from prosecuting the appeal should be denied.
This judgment is palpably erroneous, and should be reversed. Donovan brought an action against Robert Gr. Cornell, and obtained an order for his arrest. He gave the
Something was said at the argument about the undertaking being collateral security. Collateral to what ? It is a primary obligation entered into for the indemnity of a defendant who may be arrested improperly. He is the party who is to sue, and whatever damages are recoverable must be obtained in the action that he brings. It is a waste of time to pursue the matter further. The plaintiff cannot recover, and the judgment must be reversed, with costs to the appellant.
Larremore, Ch. J., and J. F. Daly, J., concurred.
Judgment reversed, with costs.