Ross v. Food Specialties, Inc.

5 A.D.2d 994, 173 N.Y.S.2d 452, 1958 N.Y. App. Div. LEXIS 6363

Opinion

Motion to dismiss appeal granted, without costs and appeal dismissed. The appeal is from an order striking out a defense contained in the answer to the amended complaint, with leave to serve an amended answer. An amended answer was served on January 7,1958. The notice of appeal is dated January 24, 1958. The affirmative defense contained in said amended answer has also been struck out pursuant to an order which is not before this court. By the service of the amended answer prior to the date of the notice of appeal, the appellant waived her right to appeal (see, e.g., Millard v. Delaware, Lackawanna & Western R. R. Co., 204 App. Div. 80; Gilchrest House v. Guaranteed Tit. & Mtge. Co., 276 App. Div. 778).

Present—-Nolan, P. J., Wenzel, Beldock, Hallinan and Kleinfeld, JJ.