
    Matter of the Assignment of John Raber to John Loughran for the benefit of creditors.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    Appeal—Waiver by accepting portion op order—Exception.
    A party cannot take the benefit of an order or judgment and then appeal from such portions as are unfavorable to him, except where the receipt of the benefit under the judgment is not inconsistent with the appeal.
    
      Motion to dismiss an appeal, on the ground that the appellant has waived his right to appeal by accepting benefits under the decree appealed from.
    John Raber made an assignment to John Loughran for the benefit of creditors. In June, 1885, the said assignee filed an account of his proceedings, showing a balance remaining in his hands, after payments made by him, scarcely sufficient to pay his commissions and the expenses of accounting. The assignor, John Raber, filed objections and contested said account, and upon his objection certain payments made by said assignee were disallowed as improperly made, and the amount with which he was chargeable was thereby increased to a sum considerably in excess of the balance remaining in his hands, as shown by the said account. Upon the settlement of the decree confirming the referee’s report, the said John Raber insisted that out of such increased balance he should be allowed $200 for his costs, and that the residue should be applied to the payment of his indebtedness to Alois Raber the first preferred creditor not paid in full. This was done at his request. Afterward the amount of costs awarded him was paid to his attorney, and the residue of the sum remaining in the assignee’s hands was applied in payment of his debts. Subsequently he appealed from the whole of such decree, and the respondent now moves to dismiss such appeal.
    
      Jackson & Burr, for resp’t; James Troy, for app’lt.
   Barnard, P. J.

The rule invoked by the moving party is well settled. A party cannot take the benefits of an order or judgment and then appeal from such portions as are unfavorable to him. Carll v. Oakley, 97 N. Y., 633; Bennet v. Van Syckel, 18 N. Y., 481. There arises an exception to this rule, when the receipt of the benefit under the judgment is not inconsistent with the appeal as when the provisions of the decree are not connected and dependent and the appellant can establish a right to a larger sum without reversing the entire judgment. Knapp v. Brown 45 N. Y., 210; Alexander v. Alexander, second department, 1 N. Y. State Rep. 510. Reversed in the court of appeals, 5 N. Y. State Rep.

The record is not returned and the court may see from the moving papers whether the appellant falls under the rule of the exception.

Motion denied with leave to respondent to raise the question again on the argument of the appeal.

Motion denied with ten dollars costs.

Dykman and Pratt, JJ., concur.  