Hood v. Hood — 6 N.Y. St. Rep. 6

Majority

p. 6

Maria L. Hood, v. Frederick Hood, et al.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

Waiver of appeal—By receiving benefits of order appealed from.

Defendant demurred to the complaint on the ground, among others, that plaintiff had not legal capacity to sue in that the action must be commenced by the executrix of H., deceased. The demurrer was sustained, and plaintiff permitted to amend the summons, and also to amend the complaint, upon payment of costs. The plaintiff served upon the defendant the amended complaint, at the same time giving him a check for the costs. . Both were retained, and the defendant’s attorney thereafter served his answer to the amended complaint: Held, that he thereby waived his appeal from the part of the order amending the summons and complaint.

This is a motion to dismiss the appeal in the above entitled case.

The defendant filed a demurrer to the complaint on the ground, among others, that the plaintiff had not legal capacity to sue, in that the action must be commenced by the executrix of the estate of Andrew Hood, deceased, which was sustained by the court, and the plaintiff permitted to amend the summons by adding after the plaintiff’s name the words, ‘ ‘As executrix of the last will and testament of Andrew Hood, deceased; and on her own behalf, and on behalf of all persons interested in the said estate;” and also to amend the complaint upon paying twenty dollars costs.

The defendant appeals from so much of the order as allowed the amendment, and noticed his appeal for argument at this general term.

The plaintiff prepared his amended complaint and duly served it upon the defendant, at the same time giving him a check for the twenty dollars. The amended complaint and check were accepted and retained, and the defendant’s attorney thereafter joined issue upon the amended complaint by serving his answer.

Under this state of facts we think the appeal ought to be dismissed. By accepting the amended complaint and check, he waived his right to prosecute his appeal.

He had a right to appeal from so much of the order as allowed the amendment, but he had no right to accept the benefit which was made a condition of granting that part of the order.

The plaintiff had a right either to make the amendment or retain his money; the latter the defendant has deprived

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him of doing, and this appeal seeks to deprive him of the former. Such practice cannot be tolerated. This decision renders it unnecessary to pass upon the appeal papers.

Motion to dismiss appeal granted, with ten dollars costs and disbursements.