
    Alexander v. Alexander.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    1. Appeal—Waiver by accepting- portion op judgment.
    Generally when a party accepts the beneficial portion of a ju lgment, or order, he waives his appeal; but this is subject to the modification that when the pordon accepted is not inconsistent with the appeal, it is not waived.
    3. Same.
    The decree in a suit to partition property left by the deceased father of the parties, provided that the proceeds of the sale of said properly should be first applied to pay the plaintiff herein the excess between the amount given to defendant over him by the father during life (which was held to be advancements) and afterward the children should take equally. Held, that by receiving his share of such remainder defendant did not waive his right to appeal from decision that the property was given as an advancement.
    
      Josiah T. Marran, for appellant, Samuel G. Alexander.
    
      Daniel T. Manning, for respondent, George R. Alexander.
   Barnard, P. J.

There is no doubt as to the general rule that when a party accepts the beneficial portion of a judgment or order he waives his appeal. This rule is subject to this modification, that when the thing or portion accepted is not inconsistent with the appeal, it is not a waiver. Knapp v. Brown, 45 N. Y., 210.

The present action was brought to have a partition or sale of lands which were left by William Alexander, the father of plaintiff and defendant. It appeared upon the trial that the deceased had deeded to both his sons, in his life-time, certain parcels of real estate, a by far larger amount to the defendant than to the plaintiff. The court held the conveyance to both children to have been intended as advancements. The decree provides that the proceeds of the sale should be first applied to pay the plaintiff the excess between the amount given the defendant and that given plaintiff, and after that that the children should take equally.

The property was sold, and after paying the excess of advancements as determined, there was a sum of $6,183.23 which each party was entitled to. The appellant has received this sum. There is nothing inconsistent between the appeal and this receipt of the money to which the appellant was at all hazards entitled to.

There is no objection to the judgment, except hi the single fact that the charge of the value of the property deeded to the appellant by deceased was wrong and should be reversed. If that is done, the sole effect will be to increase the sum to which appellant is entitled.

Motion to dismiss appeal denied.

Dykman, J., concurs.  