83 N.Y.S. 138 | N.Y. App. Div. | 1903
A careful examination of the papers leads us to the conclusion that the appeal should he dismissed. While such dismissal would, be entirely justified under rule 41 of the General Rules of Practice for the failure to file and serve the printed copies of the appeal papers within the time there required and for failure to include in. such papers many of the papers specified in the order as having been, used upon the motion, and also for failing to include in such papers-a copy of the opinion of the court at Special Term, yet we prefer to1 put our conclusion to dismiss the appeal upon the ground that the .appellant has waived its right to appeal. The order appealed from provided for a consolidation of the two actions into one and. authorized the service of an amended-complaint in the consolidated, action, and this was served. The stipulation permitted the plaintiffs to serve a second amended complaint in the consolidated action, and-as a condition of granting such favor the defendant received ten dollars from the plaintiffs who in turn gave the defendant additional time 'to answer therein. That was a complete recognition of -the existence of the consolidated'action, which consolidation had been made under and by virtue of the order afterwards appealed from. Before the appeal the defendant had served an offer of judgment and since the appeal' they have served an answer both in the consolidated action. These steps, together with the stipulation, all made without any reservation' whatever, are inconsistent-with an attempt by appeal to procure a reversal and annulment of the order pursuant to which the consolidated action exists. Even if on appeal such order should be reversed it is very questionable if the consolidated action would not still exist by virtue of the stipulation and the acts done pursuant and subsequent thereto.
We think under the facts here that there is a clear waiver of the-fight to appeal or prosecute an appeal from the order in question, and that the appeal should, therefore, be dismissed, with ten dollars costs- and disbursements.
All concurred, except Parker, P. J., dissenting.
Appeal dismissed, with ten dollars costs and disbursements.’
