James v. Powell

24 A.D.2d 428, 260 N.Y.S.2d 706, 1965 N.Y. App. Div. LEXIS 3912

Opinion

Appeal from order entered March 31, 1965, granting defendants’ motion to vacate a default judgment, unanimously dismissed, without costs or disbursements. The order granted the motion on condition defendants agreed to appear and answer and pay plaintiff $84.43 disbursements incurred. We are not concerned with the remainder of the order which was predicated on defendants’ failure to stipulate to appear and answer and pay the disbursements. The record shows that money orders for the $84.43 were received by the attorney for plaintiff and deposited in his bank account and that defendants did appear and answer. The acceptance and retention of the $84.43 constituted a waiver of plaintiff’s right to appeal from the order. (Ocean Road Terrace Co-op. Apts. v. Necko Operating Corp., 20 A D 2d 660; Mikaelian v. Aldrese, 19 A D 2d 604; Wesson v. Dullzell, 15 A D 2d 744; James v. Quimet, 283 App. Div. 819; Brenner v. Steven Plumbing Supply Co., 279 App. Div. 1087; Clair Marcelle, Inc. v. Agfa Ansco Corp., 250 App. Div. 508.) The attempt to refund the disbursements theretofore accepted came too late. Accordingly, the appeal must be dismissed. Concur — Rabin, J. P., Valente, McNally, Eager and Steuer, JJ.