Benelli v. Benelli

19 A.D.2d 829, 243 N.Y.S.2d 662, 1963 N.Y. App. Div. LEXIS 3168

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1963
• Status: Published

Opinion

Motion by appellant to dismiss his two pending appeals, with costs and disbursements against respondent. One appeal is from an order granting respondent’s (plaintiff’s) motion for a discovery and inspection; the other appeal is from an order denying appellant’s (defendant’s) motion to stay his pretrial examination by the respondent. Motion granted to the extent of dismissing both appeals, with one bill of $10 costs and disbursements to the appellant, payable by the respondent. It appears that, after the respondent had compelled appellant to proceed with the appeals and after the appellant had printed the record and his brief on both appeals, the respondent thereupon deliberately relinquished and abandoned his right to the discovery and to the pretrial examination — thus rendering academic the further prosecution of the appeals. Whether intended or unintended, the consequence of respondent’s conduct was to vitiate the orders appealed from and to give voluntarily to the appellant all the relief which he sought and which he could have obtained by the further prosecution of his appeals. In practical effect, therefore, appellant must -be deemed to be in the same position as the “party in whose favor an appeal is decided in whole or in part” and as such he “is entitled to costs upon the appeal” even though nominally the appeals arc being dismissed on his motion (CPLR, §§ 8107, 8203; Rules, Ap-p. Div., 2d Dept., rule I, subd. 8). Beldock, P. J., Ughetta, Kleinfeld, Rabin and Hopkins, JJ., concur.