Kraeger v. Warnock — 81 A.D. 150

Majority

p. 150

Oscar H. Kraeger, Respondent, v. James Warnock and James Smith Warnock, Appellants.

Headnote

Appeal — a party accepting benefits under an order cannot appeal from part thereof.

The plaintiff in an action brought to dissolve a partnership and for an accounting " obtained an ex parte injunction. Upon the hearing of a motion to continue the . injunction and for the appointment of a receiver, the plaintiff accepted an offer, made by the defendants to allow a judgment to be entered dissolving the copartnership and directing an accounting. The court thereupon, upon motion " of the defendants, made an order dissolving the injunction, canceling' the ■ undertaking given to secure the same, and allowing the defendants to liquidate , the business of the copartnership upon giving a bond. The defendants filed . the required bond, and an "interlocutory judgment was entered dissolving the partnership and embodying the provisions of the order directing the defendants to liquidate the copartnership business. The defendants then took possession-of the copartnership business and proceeded to liquidate the same.

Held, that the defendants, having accepted the 'benefits of the order, were not • entitled to appeal from that portion thereof which canceled the undertaking given on obtaining the injunction and relieved the sureties.

Appeal by the defendants, James Warnock and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county uf New York on the 1st day of October, 1902, as provides as follows, “ and that the undertaking heretofore and on the 23rd day of Sep

p. 151

•ternber, 1902, made by The American Surety Company to the defendants, and filed in the office of the Clerk of this County on that day, 'be and it hereby is released and the said The American Surety Company and the plaintiff be and they hereby are relieved from -liability or responsibility by virtue thereof.”

Carlton B. Pierce, for the appellants.

Alonzo G. McLaughlin, for the respondent.

The action was commenced to dissolve a copartnership and for an accounting. At the commencement of the action the plaintiff obtained an ex parte in junction, upon which was given an undertaking in the sum of $1,000, to pay such damages as the defendants might sustain by reason of 'the injunction, if the court should finally decide that the plaintiff was not entitled thereto, which order required the defendant to show cause why the injunction' should not be continued and a receiver appointed. The defendants, answered the complaint, admitting the copartnership, denying certain other allegations, demanding judgment for a dissolution of the copartnership and an accounting, and served upon the plaintiff an offer to allow judgment dissolving the copartnership and for an accounting. There then followed negotiations, for a settlement of the litigation and the purchase by the defendants of the plaintiff’s interest in the copartnership. Tbe.se negotiations appear to have ' been fruitless, when the plaintiff brought on the motion to continue the injunction and for a receiver. Upon that motion coming on to be heard at Special Term, the court upon motion of counsel for the defendants, the counsel for the plaintiff having consented in open court to accept the offer of judgment, dissolved the injunction order canceled the undertaking given Upon obtaining the injunction, released the surety and the plaintiff from liability thereon, and allowed the defendants to liquidate the business of the copartnership upon giving a bond in the penalty of $2,500 conditioned for the faithful performance of their trust in liquidating said business. The defendants appeal from so much of the order as cancels'the undertaking and relieves the sureties. "With this appeal there was also submitted a motion made by the plaintiff to dismiss the appeal. By

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the motion papers it appears that on October 2,1902, the defendants availed themselves of the provisions of this order which allowed them to liquidate the business, of the firm, and filed the bond required by the order; that on the 3d of October, 1902,' judgment was entered Upon the offer of judgment in the order recited dissolving the copartnership and embodying in such judgment the provisions of the order, directing the defendants "to liquidate the business of the Copartnership; that thereupon the defendants took control of the business and have ever since been in possession of the assets thereof; that subsequently the defendants made an agreement with the plaintiff whereby the defendants purchased all the fixtures in the place of business of said firm and its lease of the premises used by the firm; that a copy of the interlocutory judgment entered was served upon the defendants on the 3d day of October, 1902, and that since that time the defendants have been acting under it.

I think this appeal should be dismissed; The order upon its face is entered on motion of the defendants’ attorney. It has been accepted by the parties as the order determining the motion to continue the injunction and for a receiver, and the defendants have under its provisions and the pro visions, of the interlocutory judgment entered in pursuance thereof obtained possession of the property of the copartnership and are proceeding to liquidate the business. While we may assume that the undertaking should not have been canceled if the defendants had opposed the insertion of that provision in the order, it was granted on their motion, gave them substantial rights and vested in them the power of liquidating the firm business, and denied both the plaintiff’s motion for' a ■ receiver and to continue the injunction. The defendants could not accept the benefits of the order and at the same time appeal from that portion of it which vacated the undertaking.

It follows that the appeal must be dismissed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Appeal dismissed, with ten dollars costs and disbursements.