Opinion
April 9, 1937.
Appeal from Supreme Court of New York County.
Charles L. MacDonald of counsel [ Murray D. Welch with him on the brief; Tibbetts, Lewis, Lazo Rand, attorneys], for the appellant.
Harold Taft of counsel [ Allen R. Taft, attorney], for the respondent.
Present — MARTIN, P.J., O'MALLEY, UNTERMYER, DORE and COHN, JJ.
Orders unanimously affirmed, with twenty dollars costs and disbursements.
The facts which defendant now urges as a basis for reversal of the orders appealed from were not before the court at Special Term on the original motion or upon the motion for reargument. They were set forth in an affidavit submitted by defendant in opposition to the motion to resettle the order theretofore entered so as to provide for a day certain upon which the cause was to be restored to the calendar for trial. We are of the opinion that upon the proof presented the court was empowered to grant the relief obtained by plaintiff.
It furthers appears that the costs imposed by Special Term upon the plaintiff as a condition for opening the default were paid to and accepted by defendant. This is conceded by the appellant in its brief. By accepting the benefits of the order appealed from, the defendant precluded itself from subsequently appealing therefrom. ( Goepel v. Kurtz Action Co., 216 N.Y. 343; Carll v. Oakley, 97 id. 633; Knapp v. Brown, 45 id. 207; Metzler v. Fidelity Deposit Co., 183 App. Div. 476.)
The orders should be affirmed, with twenty dollars costs and disbursements.