#### HENRY S. BALDWIN, Appellant, *v.*LAWRENCE BARRETT, Respondent.

*Arbitration after judgment and, pending appeal, of matters determined by the judg*ment— *effect of.*

When parties, pending an appeal from a judgment in an action in which they are the parties, enter into an agreement to arbitrate the matter in dispute in the action in which judgment has been recovered, such action implies a mutual abandonment of the judgment. The fact that the submission to arbitration is not acted upon within the time therein designated, does not revive the judgment thus abandoned by its being entered into. (Barnard, P. J., dissenting.)

Appeal from an order made at the County Court of Putnam county, staying the proceedings in this action, and directing the return hy the sheriff of an execution issued herein.

This action was brought in a Justice’s Court by Baldwin against Barrett, and judgment rendered in favor of Baldwin for $135 and costs, April, 1866. Appeal was taken by Barrett to County Court of Putnam county, May 26, 1866, but no bond on such appeal was given.

On July 7, 1866, while such appeal was pending, the parties entered into an agreement under their hands and seals, reciting that disputes and litigation had arisen between them in relation to divers matters growing out of certain horse trades and the purchase of a cow, submitting all matters in dispute between the parties to arbitration, and agreed to abide by and perform the award, *“*provided the said award be made in writing and ready to submit and deliver to said parties, or such of them as may desire the same, on or before the 1st day of December, 1866.” It was further agreed that judgment might be entered in the Supreme Court on the award. Nothing was done under the submission.

On February 18, 1867, the appeal was dismissed on Baldwin’s motion, and subsequently an execution was issued on the judgment of the justice, a transcript of which was filed in the county clerk’s office, and Barrett’s property advertised for sale. On January 7, 1868, the County Court of Putnam county made an order staying proceedings on the execution, and directed its return to the office *120of the clerk of said county. Baldwin thereupon appealed to this court.

*Wm. R.*Baldwin, for the appellant.

*C.*Frost, for the respondent.

Gilbert, J.:

The necessary effect of the submission was to extinguish the judgment and to waive the appeal. It related to the same subject-matter, and provided for the entry of a judgment in the Supreme Court upon the award. The parties to it had, by it, secured a retrial of the controversy between them. If it had been made pending the suit in which the judgment was recovered, it is conceded that its effect would have been to discontinue the suit, and such, no doubt, is the rule of law. The reason is, that the parties have selected another tribunal for the trial of the case.* The same reason applies after judgment as well as before, unless it be agreed that the judgment shall remain as security, or for some other collateral purpose. The submission shows the intention of the parties to abandon the litigation in court, and to resort to another method of determining the controversy between them. This necessarily implies a mutual abandonment of all previous proceedings. To use the language of Beardsley, J., in *Van Slyke*v. *Lettice,*† the parties intended to blot out the suit from its commencement before the justice to the appeal to the County Court. ‡ The fact that the submission has not been acted on, does not alter its legal effect upon the judgment and the appeal. §

The order of the County Court is right, and should be affirmed.

*

 Larkin v. Robbins, 2 Wend., 505.

†

6 Hill, 610.

‡

**See, also, Grosvenor v. Hunt, 11 How. Pr., 355; Miller v. Van Anken, 1 Wend., 516.

§

 2 Wend., *supra.*

Barnard, P. J.

(dissenting) :

This case does not come under any case cited by respondent.

The plaintiff obtained a judgment for over $100 before, a justice. The defendant appealed and gave no undertaking. This appeal *121was not regular, and was dismissed for that reason. The judgment before the justice remained in full force. The agreement to arbitrate was conditional upon its execution by the 1st of December, 1866. The arbitrators never met. Ho reference is made in the agreement to arbitrate to the judgment. I do not think it is paid. The plaintiff ought to have the right to enforce it.

The order should be reversed.

Present—Barnard, P. J., Gilbert and Tappen, JJ.

Order affirmed, with costs.