Opinion
January 22, 1970
Appeal from order, entered May 16, 1969, granting plaintiff's motion for leave to serve an amended complaint, unanimously dismissed, without costs or disbursements. The order granted the motion on condition that plaintiff "pay the costs due within ten days after the date of service of a copy of this order with notice of entry." It appears that on June 27, 1969, plaintiff's attorney served a copy of the order of May 16, 1969 and delivered a check in the amount of $374.17, the amount of the costs claimed to be due. Payment of the costs due was imposed as a condition of granting the relief. Under these circumstances, the acceptance and retention of the $374.17 constituted a waiver of defendants' right to appeal from the order of May 16, 1969. Accordingly, the appeal must be dismissed ( James v. Powell, 24 A.D.2d 428; Mikaelian v. Aldrese, 19 A.D.2d 604; Wesson v. Dullzell, 15 A.D.2d 744).
Concur — Eager, J.P., Markewich, Nunez, McNally and Macken, JJ.