Opinion
March 22, 1954.
In an action to recover damages for injuries to the person and property and for medical expenses and loss of services, defendant appeals from an order which denied his motion to dismiss the complaint for plaintiffs' unreasonable neglect to prosecute the action, on condition that plaintiffs pay $10 costs. Plaintiffs sent to defendant's attorneys a check for the costs, which check said attorneys retained. Appeal dismissed, without costs. By retaining the check for costs imposed on plaintiffs as a condition for denial of defendant's motion, defendant has waived the right to appeal. ( Carll v. Oakley, 97 N.Y. 633; Clair Marcelle, Inc., v. Agfa Ansco Corp., 250 App. Div. 508; Brenner v. Steven Plumbing Supply Co., 279 App. Div. 1087; see, also, Farmers' Loan Trust Co. v. Bankers Merchants' Tel. Co., 109 N.Y. 342.) Nolan, P.J., Adel, Wenzel, MacCrate and Beldock, JJ., concur.