Sleeman v. Hotchkiss — 18 N.Y.S. 533

Majority

p. 533

Sleeman v. Hotchkiss et al.

(Supreme Court, General Term, First Department.

March 31, 1892.)

Headnote

Taxation of Costs—Waiver of Objections—Appeal.

Where a judgment in defendant’s favor for costs has been argued by plaintiff on appeal and decided, he thereby waives his right to take objection in reference to the taxation of such costs.

Appeal from special term, New York county.

p. 534

Action by Hathaniel Sleeman against Lewis Hotchkiss and others for equitable relief. From an order denying a motion to rétax costs plaintiff appeals.

Affirmed.

For former reports, see 13 N. Y. Supp. 98 ; 14 N. Y. Supp. 78 ; 16 N. Y. Supp. 308 ; 18 N. Y. Supp. 87 .

Argued before Van Brunt, P. J., and O’Brien and Ingraham, JJ.

Raphael J. Moses, Jr., for appellant. Henry Major, John Aitkin, and JS. R. Simms, (Henry Major, of counsel,) for respondents.

"Were it not for the fact, of which we are bound to take notice, that the appeal from the judgment herein has been argued and decided, ( 18 N. Y. Supp. 87 ,) and in such decision a modification directed to the extent of striking out the allowance, we are of opinion that we might consider the appeal from the order denying the retaxation upon the merits. But, the appellant having argued his appeal from the judgment, and such appeal having been decided, it seems to us that he has thereby waived all right now to take the objection in reference to the taxation of costs. The appeal should therefore be dismissed, without costs.