
    THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellants v. MARY KENT, Impleaded, &c., Respondent.
    
      Appeal—When exception to dismissal of complaint necessary to bring up prior exception to ruling on evidence—When right of appeal is waived.
    
    On an appeal from a judgment entered on the direction of the court dismissing the complaint for want of sufficient evidence, to which direction for dismissal no exception was taken, an exception to the exclusion of testimony tending to support the complaint is not available.
    On the trial of an action against several defendants, a bond offered in evidence by plaintiff was obj ected to on the grounds that it varied the contract alleged in the complaint, and that it was a defective and incomplete contract not having been executed by all the parties named as obligors; a motion thereupon by plaintiff to amend the complaint so that it should conform to the facts, was granted, and the complaint dismissed as to the defendant who had not executed the bond; plaintiff’s counsel consented to serve an amended complaint as to the other defendants, and defendants’ counsel consented to serve an answer thereto, all of which was embodied in an order thereafter entered, and the new pleadings were subsequently duly served in accordance therewith, and the issues thereon noticed by plaintiff for trial.' The dismissal of the complaint as to the one defendant and the leave to plaintiff to amend, were granted without objection or exception by either party.
    
      Held, that the plaintiff’s right of appeal from said judgment of dismissal, if any ever existed, was waived.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 20, 1888.
    Appeal by plaintiffs from so much of the judgment as dismisses the complaint as to one defendant.
    Motion by defendant to dismiss appeal.
    The facts appear in the opinion.
    
      Henry B. Beekman, counsel to the corporation, and Henry B. Twombley, of counsel, for appellants, argued :—
    I. It is admitted that the general rule is that a party who obtains the benefit of an order of judgment in a cause and accepts the benefit, or receives the advantages, thereby waives his right to appeal. But it is also settled law that there is a waiver only where the party “ had availed himself of some benefit or favor granted or offered to him by such judgment, order or decree, as an alternative to exercising the right of appeal. Benkard v. Babcock, 17 Abb. Pr. 422; Bennett v. Van Syckel, 18 N. Y. 481; Radway v. Graham, 4 Abb. Pr. 468; Grumberg v. Blumenlahl, 66 How. Pr. 62.
    II. The case was a proper one for a several judgment as to each of the defendants.
    III. The order dismissing the complaint as to the one defendant Mary Kent was absolute, imposed nó conditions or stipulations, and was not connected in any way or dependent upon the other parts of the judgment. The fact, then, that as to the two other defendants against whom several judgments could have been taken, the order also provided that the complaint should be amended,—which amended complaint was afterward served,—operates in no sense as a waiver of the right to appeal from the separate and distinct provision of the order dismissing the complaint as against Mary Kent. Genet v. Davenport, 60 N. Y. 194.
    
      Benjamin Yates, for respondent:—
    I. The plaintiffs waived their right to appeal from this judgment, if such right existed, by serving the amended complaint, as to the other defendants, and the appeal should be dismissed. The right to amend, allowed by this order, was a substantial benefit, of which plaintiffs have taken advantage, and they cannot first avail themselves of the part of the order in their favor, and then appeal from the unfavorable part. Wallace v. Castle, 68 N. Y. 370-375; Murphy v. Spaulding, 46 Ib. 556 ; Bennett v. Van Syckel, 18 Ib. 481-484; Genet v. Davenport, 59 Ib. 648; Egbert v. O’Connor, 46 Super. Ct. 194 ; Porter v. Paunly, 38 Ib. 490 ; Taussig v. Hart, 33 Ib. 157.
    II. There is nothing for the court to review upon this appeal. No exception was taken to the dismissal of the complaint, as to the defendant Mary Kent, and it is difficult to conceive how any exception could have been taken.
   By the Court.—Freedman, J.

In this case the plaintiffs appeal from so much of the judgment as dismisses the complaint as to the defendant Mary Kent with costs, and the respondent moves for a dismissal of the appeal on the ground that the right of appeal has been waived. The appeal and the motion were heard together, -and the material facts are as follows:

The plaintiffs leased to Mary Kent certain premises for two years from May 1, 1877, at a certain rent, and the lease was secured by a bond conditioned for the prompt payment of the rent.

The complaint alleged the execution of the lease by Mary Kent, her covenant to pay rent, possession under the lease, and default in the payment of the rent, and then also alleged the making of the joint and several bond by the three defendants in this case, conditioned for the payment of the rent. The defendant Mary Kent answered by interposing a general denial.

On the trial it appeared that the bond had been executed by the other two defendants, but not by the defendant Mary Kent, the lessee. The counsel for the defendants then objected to the admission of the lease in evidence as against Mary Kent on the ground that the action was on the bond which had not been signed by Mary Kent. The trial judge gave it as his opinion that the complaint should be amended and that, if it was insisted upon to introduce the lease in evidence, the complaint should be dismissed as against Mary Kent. The ruling then and there actually made, however, to which the plaintiffs excepted, only went so far as to sustain the objection to the admissibility of the lease.

After further proceedings the case was finally disposed of as to all the defendants, so far as that particular trial Avas concerned, and in the course of such final disposition the complaint Avas dismissed as against Mary Kent, and to such dismissal no exception was taken. This state of facts would justify an affirmance of the judgment, irrespective of tire correctness of the ruling, if the right of appeal had not been waived.

But it further appears that such right was waived. The case shoAvs that during the last stage of the trial the defendant’s counsel objected to the introduction of the bond in evidence on the ground that it varied the contract alleged in the complaint, and on the further ground that the paper was a defective and incomplete contract, because it had not been executed by all of the parties named as obligors. Plaintiffs’ counsel then asked to be permitted to amend the complaint so that it should conform to the facts, which motion was granted, and thereupon the complaint was dismissed as against Mary Kent without exception being taken, and plaintiffs’ counsel consented to serve an amended complaint as to the other defendants within three days, and der fendant’s counsel consented to serve an answer to such amended complaint within ten days thereafter, all of which was embodied in an order subsequently duly entered. Moreover, the affidavit of the respondent’s attorney on which the motion to dismiss the appeal was made, distinctly states that the dismissal of the complaint as to Mary Kent and the permission to the plaintiffs to serve an amended complaint, were granted without objection having been made by either party; that subsequently the plaintiffs, did serve an amended complaint against the other two defendants, and said defendants answered the said amended complaint, and that thereupon the plaintiffs noticed the new issue so joined for trial. These statements are not denied by any counter affidavit. Under these circumstances it must be held that plaintiffs’ right of appeal, if any ever existed, was waived.

The appeal should be dismissed with ten dollars costs.

Sedgwick, Ch. J., and Truax, J., concur.  