
    Morris Lamprey vs. Philip Henk.
    An order granting a new trial having been made in this case upon defendant’s motion upon payment of fees of plaintiffs witnesses, clerk’s fees, and ten dollars costs to plaintiff for opposing said motion. Held .- — That the payment of said sum of ten dollars to, and acceptance of the same by plaintiff, was a waiver of plaintiff’s right of appeal from such order.
    
      This action was brought in the district court for Carver county, issue was joined, and a trial had which resulted in a verdict for the plaintiff. The defendant made a motion for a new trial, which was granted as follows:
    “ The plaintiff does not appear to have been guilty of any fault in the premises, and must therefore be indemnified for his expenses. The defendant may have a new trial in said cause upon the payment of the plaintiff’s witnesses, and the fees of the clerk of the court * * * and the further sum of ten dollars costs for opposing the motion.”
    The defendant complied with the terms of this order, paying, among other things, the ten dollars costs for gpposing the motion to the plaintiff, which he accepted.' The plaintiff appealed from the order granting a new trial to this court, and the defendant here moves for a dismissal of the appeal upon the ground, that “the plaintiff having accepted the benefits and terms of the order is thereby .barred from appealing.”
    Lampreys for Appellant.
    H. J. Peck for Eespondent.
   By the Court.

Berry, J.

Plaintiff had a verdict in this case, but upon defendant’s motion the same was set aside and a new trial granted, by the district court for Carver county, “ upon payment of the plaintiff’s witnesses, and the fees of the clerk * * * and the further sum of ten dollars for opposing the motion,” the court below being of opinion that the plaintiff was without fault as respected the grounds upon which said motion was granted. It is admitted (though it. does not appear in the paper book) that the defendant complied with the terms of the order, and, among other things, paid to the plaintiff said sum of ten dollars costs allowed for opposing the motion, which plaintiff accepted. The defendant claims that plaintiff having thus accepted the benefits of the order, has waived any objections to it, and that he is estopped from calling it in question.

We are of the same opinion.

The case of Whittaker vs. McClung, 14 Minn., 170, is readily distinguished from this. There no costs were paid except such as the plaintiff was entitled to, irrespective of the demand for a second trial.

Here it was only the gremting of the new trial which created an obligation on the part of the defendant to pay the ten dollars, or a right on the part of the plaintiff to receive the same.

The payment of that sum may properly be regarded then as the performance by the defendant of a condition entitling him to a new trial, and by accepting such performance the plaintiff must be held to have acquiesced in the order granting the new trial, and to have waived his right to appeal from it. Radway vs. Graham, 4 Abb. Pr., 468; Lewis vs. Irving Fire Ins. Co., 15, Abb. Pr. 140 note; Lupton vs. Jewitt, 1 Robertson, 641.

The defendant’s motion for a dismissal of appeal is therefore granted.  