James v. Ouimet

In an action to recover damages for injuries to the person and property and for medical expenses and loss of services, defendant appeals from an order which denied his motion to dismiss the complaint for plaintiffs’ unreasonable neglect to prosecute the action, on condition that plaintiffs pay $10 costs. Plaintiffs sent to defendant’s attorneys a check for the costs, which cheek said attorneys retained. Appeal dismissed, without costs. By retaining the cheek for costs imposed on plaintiffs as a condition for denial of defendant’s motion, defendant has waived the right to appeal. (Carll v. Oakley, 97 N. Y. 633; Glair MareeTle, Inc., v. Agfa Ansco Corp., 250 App. Div. 508; Brenner v. Steven Plumbing Supply Go., 279 App. Div. 1087; see, also, Farmers’ Loan é Trust Co. v. Bankers Merchants’ Tel. Go., 109 N. Y. 342.) Nolan, P. J., Adel, Wenzel, MaeCrate and Beldock, JJ., concur.