(dissenting):
Tlie complaint is for negligence of the defendant whereby -it is alleged plaintiff lost a horse .and suffered personal injuries. The answer alleges, among other things, an accord and satisfaction and written release for the cause of action alleged duly executed by plaintiff. On application of defendant the Special Term directed plaintiff to make verified reply to that portion of the answer setting forth the release.
The reply was made and served and admitted the making of the-release in “ terms and substance ” set forth in the answer, “ but-denies that the said release covers and includes the cause of action set up in the complaint in this action.” The court at Special Term required a further and more explicit reply, and plaintiff then served one in which he, for the purpose of avoiding the effect of the release, in substance said that at the time the release was executed he was in a condition of mind which made him unfit to appreciate the character of the instrument; “ that if he did execute a release of the cause of action alleged in the complaint the same was obtained from him by deceit and misrepresentation while-he was so enfeebled and incapacitated to properly understand the effect and meaning of the instrument he signed, and that he never has intended to execute a release to the defendant for his personal injuries as set forth in the answer.”
This presented an issue well defined. Was the release procured at a consideration of $200 paid, procured by fraud ? So the issue remained down to the trial. Under this issue no proof'could have been made going to show that the $200 was paid as a partial remuneration, the value of the horse or horse and wagon; possibly, if no reply had been served such proof would have been proper, but to make it so, the plaintiff would first need to 'get his reply off the record or have it amended to fit the new facts alleged. I, however, very seriously doubt the propriety of permitting such a complete change of base on the trial. In fairness pleaders should be held to the issues tendered by their pleadings. This was the situation when plaintiff opened- his case to the jury. What he said in that opening the record does not disclose, except that he stated the release “ was only signed for the horse and wagon.”
Motion was made by defendant’s counsel for a dismissal “ for *271the reason that there is 'no allegation in the complaint that they restored or offered to restore the consideration for this release.” The Court: “ I understand this motion is made not only on the opening but on the pleadings.” Mr. Carpenter: “ On the opening and the pleadings.” Some discussion then was had between court and counsel of a colloquial nature. Then counsel for plaintiff said : “ I should ask, under the circumstances, to withdraw a juror and make an amendment.” Some further talk was had and counsel for plaintiff then said : “ I shall withdraw a juror but first * * * I ask to go to the jury on all the facts and upon the question of whether we were bound to restore this $200, the money mentioned in the release, before we brought the action or at any time.” [Denied. Exception.] “I ask to withdraw a juror.” The Court: “ The only question is as to whether any terms should be imposed.” Mr. O’Neill: “ I think not.” - The counsel for defendant objected to the allowance of plaintiff’s request to withdraw a juror without payment of costs, and the court said: “ I am inclined to think the only terms I shall impose would be the costs of the trial.” Mr. O’Neill: “ I wish you would put in the order that you intend to make the amount to be paid within 30 days or the complaint dismissed.” The Court: “ I will make this order in the case: that you may withdraw a juror on the payment of the trial fee * * * in the event of your failure to pay that within 30 days after notice of entry of the order, an order may be entered granting the motion dismissing the complaint.” Thereupon plaintiff withdrew a juror, and the mistrial was perfected. There was no trial, no decision reached and no judgment, as complete a mistrial as though the case had been submitted to a jury and there had been a disagreement. There is in the case nothing to review by reason of the appeal from the judgment any more than there would have been on the happening of. any other mistrial. If the case had been dismissed it would have-been otherwise; the appeal must be-treated as an appeal from an order simply.
The dismissal here provided for in the order was a condition attached to the granting of plaintiff’s request to withdraw a juror, and he accepted the favor he asked with the condition attached. He took the benefit of the allowance of his request to withdraw a juror and postpone the trial. He even asked to have this condition *272attached to the order he was' seeking. The'order was wholly of his own procuring. It makes no difference just what were the inducements which led him to seek the order. He had the right to refuse' the order. But he asked for it and it was granted. It was not duress that drove him. ' He was confronted with threats of a dismissal, but that is hardly duress or subject for review. He piloted his own case and secured through court clemency the order; failing to comply with the conditions which he suggested should be placed in the order, within the time he suggested, that failure operated to dismiss his action. The court could not give plaintiff, the right to. appeal in case it was wrong in placing for choice the two horns of a. dilemma.
It was held in Hooper v. Beecher (109 N. Y. 609) that “A party in whose favor a judgment is entered or an order made cannot be aggrieved by it, and he is, therefore, in no position to claim the right of appeal.”
Traffarn v. Getman (19 N. Y. St. Repr. 295) is a General Term decision. . The justice in that case returned that the defendant, against whom the decision was rendered, instigated the judgment. The court held that' he had no right to appeal. Follett, J., said : “ I am not prepared to hold * * * that the justice’s judgment is valid; but I am clear the defendant had no right of appeal.”
Austin v. Wauful (36 N. Y. St. Repr. 779) seems to be fiill authority for the determination of the case here considered. In the opinion Maetiií, J., says: “ In the case at bar the plaintiff at the close of the trial, instead of standing upon, his exceptions to ■ the rulings of the court and permitting it to dismiss the complaint, and then relying upon the questions of law in the case, asked leave to amend his complaint and that the trial should be postponed. The court allowed him to amend and postponed the trial at his request. As a condition to such amendment ■ and postponement, the court required the plaintiff to pay twenty dollars costs and witness’ fees, and directed that in default of an amendment and payment of costs ■ that his complaint should be dismissed. While the plaintiff excepted to the conditions imposed upon granting the order he did not refuse to accept the order which postponed the trial and gave him the right. to amend. The effect -of this procedure was, we think, to effect an abandonment of the proceedings had on the trial, and leave the *273order as though it had been made before any trial had been had.” This was like the case at bar, an appeal from a judgment rendered on a failure to comply with the order within thirty days:
Weichsel v. Spear (47 N. Y. Super. Ct. 223) was affirmed in 90 Hew York, 651. There leave to amend the complaint'was granted on plaintiffs request, and the court gave leave to amend in four days on payment of costs; on failure to amend and ¡Day within the designated time, judgment of dismissal was entered as the order provided. On appeal the court said he was bound by the order; that lie might have refused it, not being satisfied with the conditions ; that the dismissal was under the circumstances to be treated as a' dismissal at his own request, and the only relief he had was to amend and then proceed with the action. Grunberg v. Blumenlahl (66 How. Pr. 62); Canary v. Knowles (41 Hun, 542); Dambmann v. Schulting (6 id. 29), are all cases illustrating the same doctrine.
I see nothing in this case which distinguishes it from those cited, and on principle and following the uniform practice, the plaintiff should be held to be estopped from attacking the order procured at-his own instance and for his own benefit and under which he obtained time to amend by the usual practice of withdrawing a juror.
The judgment should be affirmed, with costs.
Edwards, J., concurred.
Judgment reversed and new trial granted, with costs of appeal to. appellant to abide event. ‘ ■