Opinion
Argued October 15, 1883
Decided October 26, 1883
N.C. Moak for motion. James M. Smith opposed.
We think this motion should be denied. The claim of the respondent to dismiss the appeal rests upon a clause in an undertaking entered into by the defendant on the appeal to this court from the order of the General Term; among other things, vacating and setting aside an order of the Special Term opening a default of the appellant and permitting him to answer. The particular clause in that undertaking upon which the respondent relies, provides that if the order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay any judgment that may be entered pursuant to the order for judgment of January 16, 1882. The order from which the appeal was taken was affirmed in this court, and judgment was subsequently entered against the appellant, pursuant to the order of January 16, 1882, from which the present appeal is taken. It is now claimed that this provision in the undertaking prevents the appellant from maintaining the appeal from the judgment. A stipulation barring the right of appeal given by law should be very clear in its terms and should leave no doubt of the intention of the party to cut himself off from the right of appeal, before it should be so construed. The clause relied upon is we think satisfied by holding it to relate to the final judgment in the action, and we think it should be so construed.
The motion to dismiss should, therefore, be denied, with $10 costs.
All concur.
Motion denied.