Opinion
Argued November 22d 1871
Decided November 28th, 1871
J.H. Reynolds, for appellant.
S.E. Church, for respondent.
The plaintiff in his complaint asks judgment that the defendant Sands, be compelled to grant and convey the premises to him, or if such conveyance is impracticable, that the defendant be adjudged to pay him damages for not conveying. He has well placed these two kinds of relief in the alternative, for it is evident that one is inconsistent with the other. One cannot at the same time have conveyance to him of lands, and damages for the non-conveyance of them. The judgment entered upon the report of the referee, that the plaintiff was not entitled to a conveyance, but was, to damages for non-conveyance, was consistent. The plaintiff, however, could appeal from any specified part of it. (Code of Proc., § 327.) But the appellate court cannot properly reverse the judgment as to the part specified by the plaintiff and allow the part not complained of by him to stand. The provisions of the judgment are connected and dependent. The parts specified by the notice of appeal should not be reversed without a reversal of the other. ( Bennett v. Van Syckel, 18 N.Y., 481.) If it should be found on review that the plaintiff is entitled to a conveyance of the premises, and conveyance must be adjudged, then he is not entitled to damages because a conveyance is not and cannot be made. And then to do justice to all, the whole of the judgment should be reversed.
If then, the plaintiff has elected to accept the judgment so far as it is in his favor, he cannot appeal from it so far as it is not.
All that there is in the papers which shows an election by the plaintiff, is the motion for judgment for him and the entry of it by his attorney. The plaintiff was not obliged to enter that part of the judgment which was in his favor, to enable him to appeal from the other part, which was in favor of the defendant Spaulding, and was entered on motion in behalf of her. So that his action in that regard cannot be charged to that motive. His joining in the entry of judgment, we must infer was to secure to himself the advantageous part of it. By entering it he has claimed the right which the judgment gave him, and he has it in his power at any time to enforce it. It is inconsistent to claim and accept this, and seek to avoid the other.
Again; the appellate court may reverse affirm or modify the judgment appealed from, in the respect mentioned in the notice of appeal (Code, § 330), and is confined thereto. ( Kelsey v. Western, 2 Comst., 500.) The appellate court cannot then, disturb that part of the judgment favorable to the plaintiff. And this inability results in this case from the plaintiff having caused the entry thereof and taken no appeal therefrom. It was an affirmative act on his part, which must be held to indicate his purpose to take and assert the right to damages given him by the judgment. The appeal should be dismissed, with costs to the respondent.
All concur.
Appeal dismissed.