p. 44David Miller, Resp’t, v. Benjamin Wright et al., App’lts.(Supreme Court, General Term, Second Department,Where an appellant, after taking his appeal, collects costs and extra allowance granted him in the judgment appealed from, and consents that the other defendants receive their share under it, he has waived his appeal.
Appeal from a judgment of special term, Kings county, in favor of plaintiff. Defendant Wright appeals.
Taylor & Ferris, for app’lt; F. P. Bellamy, for resp’t David Miller; I. N. Sievwright, for resp’t Lucy E. Miller; Samuel Keeler, for respt’s Ezra W. Miller and others: James B. Lockwood, for resp’t, guardian ad litem.
—There is nothing in the printed case which calls for a reversal of the judgment appealed from. The case does not contain all the evidence, and so states. The error is fatal. Porter v. Smith, 107 N. Y., 531 ; 12 N. Y. State Rep., 479.
The appeal is from the entire judgment, and the points allege erroi as to one share only, that of Cínarles E. Miller. The complaint of plaintiff alleges title to this share to be in his heirs. The plaintiff was himself one, and so was Benjamin Wright, the appellant. Wright’s answer set up advances to Charles E. Miller-in his lifetime, and while the nominal title in trust was held by him, to the Charles E. Miller, third. The plaintiff denied this. The answer of Wright was served on the other heirs of Charles E. Miller, and they made no reply. The issue thus formed did not admit the advancements to Charles E. Miller. The plaintiffs reply put the
p. 45averment in issue for all the parties interested. in the share of Charles E. Miller. What was decided in respect to these advancements by the first report of the referee does not appear. There was allowed $794, with interest from January 3, 1885, besides commissions out of the general fund. The evidence returned does not show that any portion of the supposed trust funds were advanced to Charles E- Miller. As the trust was void after 1871, and these advances were made within two or three years thereafter, the claim is barred by the statute of limitation. The appellant, by collecting his costs since appeal, and by consenting that two-thirds of the estate be paid out under the judgment, has waived his appeal.
Carll v. Oakley, 97, N. Y., 633 ;
Alexander v. Alexander, 104 id., 643 ; 5 N. Y. State Rep., 499.
The general charges against the trust estate under the deed from Hannah E. Byerson and the commissions of David Wright, were taken out before any distribution.
If these are now increased, there is but the Charles E. Miller •share out of which they can be paid.
The appeal should, therefore, be dismissed, with costs of motion, and judgment affirmed, with costs.
Dykman, J.,