The opinion
Ross, J.
Complaint was on assigned count for goods sold and delivered and judgment demanded, $35.90.
Answer, with other things, tender $30.32, which amount was paid in court.
March 20, 1896, judgment was rendered for the plaintiff for $30.32 and costs. . ■ . .
''April 9, 1896, appeal was taken.
It was conceded upon the argument that upon March 23, 1896, Mr. Willis T. Gridley, appellant’s attorney, took out of, court the above sum of $30.32. If the court had found the tender sufficient judgment should have gone against the plaintiff. Murphy v. G. & S. T. Co., 24 N. Y. St. Repr. 123; Becker v. Boon, 61 N. Y. 322 . And the plaintiff would have had the right either before or. after judgment to regard the money as his own. The court by giving judgment for plaintiff necessarily found that there was no tender, and defendant taking the appeal the plaintiff accepts a portion of the benefits of judgment by taking the money deposited in court and belonging to the defendant; being the exact amount of his recovery; In other words, he says this is a good judgment for $30.32, I will avail myself of its. benefits to this extent and appeal from the balance, $4.58 and interest, which I claim I should have received in addition to the amount awarded me.
This would not seem to be fair and is not good law. Bennett v. Van Syckel, 18 N. Y. 481 -484; Knapp v. Brown, 45 id. 207;. Alexander v. Alexander, 104 id. 643, in which it is said: “It is not denied that he could not be permitted at the same time to take the fruit of the judgment, and appeal from it as erroneous or wrong.” And again: “He stands thus in the attitude of hold-' ing the fruit of the judgment to which he may not be entitled if his appeal succeeds, and yet persisting in his appeal. The trouble is that he cannot gain the.right to .recover more without ■incurring the hazard of recovering less.”
The proper disposition of this appeal is a dismissal rather than an affirmance. Genet v. Davenport, 59 N. Y. 648 .
Appeal dismissed, with $10 costs.