Majority
p. 749Nathaniel Sleeman, App’lt, v. Lewis Hotchkiss et al., Resp’ts. (Supreme Court, General Term, First Department, Filed March 31, 1892.)
Headnote
Costs—Waives.A plaintiff by appealing from a judgment recovered against him for costs thereby waives all right to afterwards move for relaxation of such costs.
Appeal from order denying motion for re-taxation of costs.
JR. J. Moses, Jr., for app’lt; Ii. Major, for resp’ts.
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 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 re-taxation 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.
Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.