Levin v. Dietz — 120 N.Y.S. 1131

Majority

p. 1131

LEVIN et al. v. DIETZ.

(Supreme Court, Appellate Division, Second Department.

Janu

p. 1132

ary 21, 1910.)

Headnote

Action by Louis Levin and another against James E. Dietz, specially appearing, and Headley M. Greene, in which said Dietz appeals.

The appeal from the order of October 19, 1909, is dismissed, with $10 costs and disbursements, upon the ground that such order is not appealable. The motion to amend the order of May 27, 1909, was unnecessary. The condition in the order with regard to the filing of the bond, being a condition in favor of respondent, could be waived by him. The appellant is estopped from claiming his right to a jury trial, and must proceed with the hearing before the referee.