The defendant's practice in paying the judgment before appealing from it is not to be condemned. It is rather to be encouraged. A party who recovers at the trial term and, against his adversary's appeal, sustains the recovery at the General Term, might fairly be deemed entitled to the fruits of his action without further delay. The law, however, allows one more appeal, but although it is taken, the successful party may, nevertheless, enforce his judgment by execution, and so collect its award, unless the defeated party secures its ultimate payment by a deposit of money or an undertaking. Why may he not simplify the matter by placing the funds at once in the hands of the party, who, if the appeal fails, will be ultimately entitled to them? By so doing he will save the costs of execution and do no harm to his creditor. We think he should not, by a temporary submission to the decision of the court, be placed in a worse position than if he awaited execution and settled it with sheriff's fees. InDyett v Pendleton (Court of Errors, 8 Cow, 326), an execution had, in fact, issued, but the court held that even a voluntary payment of the judgment would have been no reason against a writ of *Page 579 error and in a subsequent case, Clowes v. Dickenson (8 Cow. 328), Spencer, Senator, referring to the decision just cited, says: "I feel confirmed on reflection that no matter how the money is paid or collected, this cannot affect the right to try error on appeal." To the same effect are many subsequent decisions, and (it must be deemed too well settled by authority to require further discussion, that a party against whom a judgment has been rendered is not prevented from appealing to this court by the fact that he has paid the judgment, unless such payment was by way of compromise, or with an agreement not to take or pursue an appeal.) (1 Code Rep. [N.S.], 415; Ct. of App. 1852; Sheridan v. Mann, 5 How. Pr. 201; 42 Barb. 441.) The statute giving the right to appeal only requires that the judgment in question shall be final (Code, § 190), that the appeal shall be taken within one year after it is entered (§ 1325), and, anticipating such a case as that now presented, provides that if the judgment appealed from is reversed, the appellate court may make or compel restitution. The same rule prevailed before the Code, and it was applied whether the judgment was paid before or after writ of error brought. The only difference was in the manner of proceeding to inform the court of the facts on which the right to restitution depended. (Tidd's Practice, 1033; 1034; Sheridan v. Mann, supra.)
The appellant's practice has been regular, and the motion to dismiss the appeal should be denied, with $10 costs
All concur.
Motion denied. *Page 580