Statement of case.

dollars and twenty-two cents on the contract, and the deed was to have been delivered on the 1st of May, 1862.

It appears that nothing more was done under this contract until after the month of April, 1866.

After the death of George R. Sands, sole executor and trustee of the will of David Sands, deceased, and in or about the year 1855, Walter Sands, one of the defendants, was appointed trustee by the Supreme Court in the place of George W. Sands, deceased.

On the 3d of April, 1866, Walter Sands agreed in writing to sell the lot in question to the appellant, Murphy, for seventy-five dollars, and received ten dollars on account of the purchase-money.

On or about the 12th of April, 1866, defendant, Spaulding, commenced an action in the Supreme Court against the defendant, Walter Sands, in his representative capacity, to enforce the performance of the contract made with George W. Sands, and he was enjoined from disposing of the lot, and, on the 23d of June, 1866, the defendant, Sands, as trustee, conveyed the lot in question to Spaulding.

The referee found, among other things, that the defendant, Sands, at the time of the execution of the agreement with the plaintiff, knew of the existence of the prior agreement made by George W. Sands to Spaulding.

That on the 22d of June, 1856, the defendant, Sands, in good faith executed and delivered the deed of the property to Spaulding.

The referee, thereupon, ordered judgment in favor of Spaulding against the plaintiff with costs, and in favor of the plaintiff against Sands for eighty-one dollars and twenty-one cents with costs.

The former part of the judgment was entered on motion of counsel for defendant, Spaulding, and the latter on motion of plaintiff's counsel. Plaintiff appealed from the judgment "except so much as in favor of the plaintiff on the merits, and as to costs against the defendant, Walter Sands."

Opinion of the Court, per FOLGER, J.

J. H. Reynolds, for appellant. The delay of defendant, Spaulding, in seeking to enforce her contract, was a bar to equitable relief. (Sugden on Vendors, 278; 2 Story Eq. Jour., § 776; Southcourt v. Bishop of Exeter, 6 Hare., 219 (31 Eng. Ch. R.); Harrington v. Wheeler, 4 Vesey, Jr., 687; Lloyd v. Collett, 4 Bro. Ch. C., 469; Benedict v. Lynch, 1 J. C. R., 378; Chase v. Hogan, 3 Abb. R., N. Y., 57; Bruce v. Tilson, 25 N. Y., 194.) She should seek her remedy in damages, and plaintiff should have the property. (Benedict v. Lynch, 1 John. Ch., 378.)

S. E. Church, for respondent. Plaintiff obtained one of the two forms of relief sought, has accepted it, and cannot appeal. (Bennett v. Van Syckle.) Specific performance a matter of discretion. Story Eq. Jour., §§ 750, 750a, 751; Slocum v. Slosson, 1 How. App. Cases, 750, 758; Clark v. Rochester and Niag. R. R. Co., 18 Barb., 350; St. John v. Benedict, 6 J. C. R., 111; Mills v. Van Voorhis, 23 Barb., 125; 1 N. Y., 210; 3 Edw., 213; 3 Sandf., 72; Hatch v. Cobb, 4 J. C. R., 559; Kempshall v. Stone, 5 id., 193; Morse v. Elmandorf, 11 Paige, 279; 6 J. C. R., 222; 3 Con., 445.) Plaintiff knew of respondent's equities, and had he obtained a deed, would have been compelled to convey to her. (Sto. Eq., §§ 784, 788; 6 J. Ch., 402.) Respondent had not forfeited her right by delay. (Stevenson v. Maxwell, 2 N. Y., 408; 8 N. Y., 50; Badner v. Conradt, 13 N. Y., 108; Frey v. Johnson, 32 How., 316.)

FOLGER, J. 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

Opinion of the Court, per FOLGER, J.

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

Statement of case.

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.

JESSE M. EMERSON, Appellant, v. MILO H. PARSONS and LEVI S. PARSONS, impleaded, etc., Respondents.

The dissolution of a copartnership may be proved by parol, and a certificate signed by one of the copartners to the effect, that he has purchased the interest of the other members of the firm, is competent evidence upon the question, whether such an agreement was in fact made, and as corroborative of the alleged parol contracts.

A formal notice of dissolution, signed by all the partners and published, and a formal transfer of the partnership property to a third person, are not conclusive evidence of the time of dissolution.

(Argued November 24, 1871; decided November 28, 1871.)

APPEAL from a judgment of the General Term of the Superior Court of the city of New York, affirming a judg ment in favor of defendants, entered upon a verdict and affirming an order denying motion for new trial. (Reported below, 2 Sweeny, 447.)

The action was for a balance of $833.33 due on an advertising contract, claimed to have been made with defendants and one Edward F. Baker as partners.

The partnership alone was contested.

That was proved on the part of plaintiff by the partnership articles of date 26 June, 1867, and plaintiff rested.

The defendants, Parsons, alleged and swore that the partnership was dissolved on the 3d September, 1867, and offered the following writing in evidence:

Statement of case.

"This is to certify that I have purchased the interest of M. H. Parsons and Levi S. Parsons in the firm of E. F. Baker & Co., and I hereby agree to assume all liabilities of the said firm, and hold M. H. Parsons and Levi S. Parsons harmless. "E. F. BAKER.

"NEW YORK, Sept. 3, 1867."

This was objected to by plaintiff, but received by the court, and the ruling excepted to.

The judge subsequently charged that this writing was evidence of the dissolution of the firm, together with the proof of parol dissolution. This part of the charge was excepted to by plaintiff.

The plaintiff then introduced the article of dissolution signed by all the firm, of date 5th December, 1867, dissolving the partnership. This dissolution was advertised in the newspapers. The plaintiff also gave in evidence a bill of sale of 5th December, 1867, signed by all the defendants.

The jury, after the charge of the court, found a verdict for defendants.

Plaintiff made a motion to set aside the verdict and for a new trial, upon the exceptions taken and for insufficient evidence, and which motion was thereupon entertained by the judge, who tried the cause, and after hearing argument thereon, denied said motion.

E. D. Culver, for appellant.

E. Patterson, for respondents. The denial of motion for new trial was correct. (Allgro v. Duncan, 24 How., 212; Murphy v. Baker, 3 Robt., 1; Townsend Man. Co. v. Foster, 51 Barb., 350; Hall v. Morrison, 3 Bos., 520; Lewis v. Blake, 10 Bos.) The only questions of law to be considered are those arising under exceptions taken at the trial. (Morrism v. N. Y. and N. H. R. R. Co., 22 Barb., 571; Ingersol v. Bostwick, 22 N. Y., 425; Hunt v. Bloomer, 13 N. Y., 341; Wheeler v. Garcia, 40 N. Y., 585; Meekings v. Cromwell, 5 N. Y., 137; Coon v. Syracuse and U. R. R., id., 492; SICK ELS - VOL. I.

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