George C. Genet, Appellant, v. Nelson Davenport, impleaded, etc., Respondent

George C. Genet, Appellant, v. Nelson Davenport, impleaded, etc., Respondent. (Argued December 8, 1874; decided December 15, 1874.) One who has entered a judgment, part of which is in his favor, and an independent part not, and has resisted an appeal taken by the other party, and upon affirmance in this court and the sending down of the remittitur has caused the decision here to be made the judgment of the court below, cannot thereafter appeal from the whole judgment. By these acts of election he waives his right to appeal, although the time therefor has not expired. This was a motion to dismiss an appeal. The action was tried before a referee; from the judgment entered upon the report of the referee plaintiff appealed; the General Term modified the judgment, vacating a part and affirming the judgment as modified; judgment in accordance therewith was perfected on motion of plaintiff’s attorney ; defendant appealed to this court from the modification; the appeal was contested by the plaintiff and the judgment was affirmed. Upon the sending down of the remittitur the decision here was, on motion of plaintiff’s attorney, made the judgment of the court below. Plaintiff’s attorney, who had become, assignee of the judgment, then took an appeal to this court from the whole judgment. Held, that plaintiff had elected to abide by the judgment of the General Term, and had waived his right to appeal. Martin I. Townsend for the motion. George W. Miller opposed. [MAJORITY — Folger, J.,] Folger, J., reads memorandum for granting motion. All concur. Appeal dismissed.