Ocean Road Terrace Co-Operative Apts., Inc. v. Necko Operating Corp.

In an action by the corporate owner of a co-operative apartment house to recover damages for breach of a building construction contract, against the builder and its surety, the defendants appeal from an order of the Supreme Court, Kings County, entered May 28, 1963, which denied their motion to dismiss the action for lack of prosecution, upon the condition that, within a specified time, the plaintiff shall notice the cause for trial and pay $100 costs to defendants. The $100 was duly tendered to and received by the defendants prior to their filing a notice of appeal from the order, and the said sum has been retained by them. Defendants admit their receipt and retention of the $100. Upon the argument of the appeal, plaintiff renewed its motion to dismiss the appeal on the ground that the defendants’ acceptance and retention of the $100 paid to them pursuant to the order, constituted a waiver by them of their right to appeal from the order. Motion granted; appeal dismissed, with costs (East Coast Attic & Basement Co. v. Cytryn, 13 A D 2d 688; James v. Ouimet, 283 App. Div. 819). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.