Turntables, Inc. v. M. B. Plastics Corp.

Appellate Division of the Supreme Court of New York

Turntables, Inc. v. M. B. Plastics Corp.

33 A.D.2d 899, 307 N.Y.S.2d 45, 1970 N.Y. App. Div. LEXIS 5677

Appellate Division of the Supreme Court of the State of New York·Decided January 22, 1970·Published·Cited by 3 cases

Opinion

— 'Appeal from order, entered May 16, 1969, granting plaintiff’s motion for leave to serve an amended complaint, unanimously dismissed, without costs or disbursements. The order granted the motion on condition that plaintiff "pay the costs due within ten days after the date of service of a copy of this order with notice of entry.” It appears that on June 27, 1969, plaintiff’s attorney served a copy of the order of May 16, 1969 and delivered a cheek in the amount of $374.17, the. amount of the costs claimed to be due. Payment of the costs due was imposed as a condition, of granting the relief. Under these circumstances, the acceptance and retention of the $374.17 constituted a waiver of defendants’ right to appeal from the order of May 16, 1969. Accordingly, the appeal must be dismissed (James v. Powell, 24 A D 2d 428; Mikaelian v. Aldrese, 19 A D 2d 604; Wesson v. Dullzell, 15 A D 2d 744). Concur — Eager, J. P., Markewich, Nunez, McNally and Macken, JJ.

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— 'Appeal from order, entered May 16, 1969, granting plaintiff’s motion for leave to serve an amended complaint, unanimously dismissed, without costs or disbursements. The order granted the motion on condition that plaintiff "pay the costs due within ten days after the date of service of a copy of this order with notice of entry.” It appears that on June 27, 1969, plaintiff’s attorney served a copy of the order of May 16, 1969 and delivered a cheek in the amount of $374.17, the. amount of the costs claimed to be due. Payment of the costs due was imposed as a condition, of granting the relief. Under these circumstances, the acceptance and retention of the $374.17 constituted a waiver of defendants’ right to appeal from the order of May 16, 1969. Accordingly, the appeal must be dismissed (James v. Powell, 24 A D 2d 428; Mikaelian v. Aldrese, 19 A D 2d 604; Wesson v. Dullzell, 15 A D 2d 744). Concur — Eager, J. P., Markewich, Nunez, McNally and Macken, JJ.

Turntables, Inc. v. M. B. Plastics Corp., 33 A.D.2d 899, 307 N.Y.S.2d 45, 1970 N.Y. App. Div. LEXIS 5677 (N.Y. Ct. App. 1970).

Pincite

33 A.D.2d 899 (Turntables, Inc. v. M. B. Plastics Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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