
    Ruth Cohen, Respondent, v. Max Cohen, Appellant.
   In an action for a separation, the appeal is from a judgment in favor of respondent. The notice of appeal seeks to bring up for review an intermediate order which vacated a stipulation settling and discontinuing the action and restored the case to the calendar for trial. Judgment modified on the facts by striking from the fourth ordering paragraph the figure $35 ” and by substituting therefor the figure “ $25 ”. As so modified, judgment unanimously affirmed, without costs. The seventh finding of fact and second conclusion of law are modified accordingly. On the record presented, the award of alimony was excessive. Appeal from intermediate order dismissed, without costs. The order is one which necessarily affects the final judgment and in other circumstances would be reviewable under section 580 of the Civil Practice Act. (Cf. Rapalee v. Stewart, 27 N. Y. 310, 313; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284, 304.) However, it is our opinion that appellant waived the right to appeal from the order when he proceeded with the trial and urged thereon that respondent had not established her cause of action. Moreover, since the order vacated the settlement agreement, appellant was relieved of the necessity of complying with its provisions. Having accepted the benefit conferred by the order, he may not thereafter test its sufficiency by appeal. (Cf. Grunberg v. Blumenlahl, 66 How. Prac. 62; Levy v. Joseph P. Day, Inc., 250 App. Div. 452, appeal dismissed 274 N. Y. 588; Comfort v. Comfort, 227 App. Div. 1, 5.) Present — Nolan, P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ.  