Opinion
June 18, 1963
Appeal from order entered January 31, 1963, denying motion to dismiss for lack of prosecution, unanimously dismissed, without costs. The order denied the motion "on condition that the plaintiffs pay costs, chargeable to and paid by the attorney for the plaintiffs in the sum of $100 and notices this case for trial for the next available term after entry of this order." It appears that the defendant or his attorney has accepted and cashed a check for the costs tendered by the attorney for the plaintiffs in compliance with the order of the court. Under these circumstances, the right to appeal is waived and the appeal should be dismissed. ( Wesson v. Dullzell, 15 A.D.2d 744; James v. Ouimet, 283 App. Div. 819.)
Concur — Botein, P.J., McNally, Stevens, Eager and Steuer, JJ.