
    William G. Rockefeller and John P. Kellas, Respondents, v. St. Regis Paper Company, Appellant.
    
      'Waiver of the right to appeal from an order vacating a judgment and consolidating actions.
    
    !n an action brought to recover moneys due upon a contract, the plaintiffs obtained judgment by default, issued execution thereon, and collected the .amount thereof. Thereafter they brought another action to recover moneys •which subsequently became due under the same contract. The defendant .answered in the second action, setting up, in bar thereof, the judgment ■obtained in the first action and the satisfaction thereof. The plaintiffs then ■obtained an order permitting them to pay back to the defendant the sum paid in satisfaction of the judgment in the first action, vacating and setting aside such judgment and consolidating the two actions. The defendant having refused to receive the money, the plaintiffs paid it into court. The plaintiffs ■served an amended complaint in the consolidated action, which was received by the defendant’s attorney without objection. Thereafter the defendant served an offer of judgment in the consolidated action.
    •Subsequently the attorneys for the respective parties entered into the following stipulation: “ It is hereby stipulated, that the plaintiffs may serve a second and further amended complaint in the above-entitled consolidated, action, upon;., payment of ten dollars costs, the payment and receipt of which is hereby acknowledged, and that the defendant may have twenty days from the date of such service in which to answer such amended complaint. Service of a copy of said amended complaint is admitted this day. ”
    A week after the stipulation, was signed, the defendant served a notice of appeal from the order of consolidation and still later served, an answer to' the second, amended complaint in the consolidated action.
    
      Meld, that the conduct of the defendant, since the entry of the order of consolidation, operated as a waiver of its right to appeal therefrom.
    
      Quoire, whether, if the order of consolidation should be reversed upon appeal, the consolidated action would not still exist by virtue of the stipulation and the-acts done pursuant and subsequent thereto.
    Parker, P. J., dissented.
    Appeal by the. defendant, St. Regis Paper Company, from am order of - the Supreme Court, made at the Franklin Special Term, and entered in the office of the clerk of the county of Franklin oñ, the 13th day of February, 1903, vacating and setting aside a judgment in favor of the plaintiffs, and authorizing the plaintiffs to repay to the defendant the amount paid in satisfaction thereof and consolidating the action in which' said judgment was obtained with another action. .
    Plaintiffs brought an action to recover, from, the defendant the . amount due to October 1, 1902, upon a. contract, for timber cut and. removed from land of their assignor, amounting to $5,030.. ' Judgment was entered in that action by default and an execution issued', thereon arid returned satisfied January 19, 1903. . A second action, between the same parties was begun January 9,1903, to recover the-; sum of $26,251.21, the amounts alleged to be due on the same contract for the months of October and November, 1902. The defen drant answered in the second action, setting up the judgment in the» first action and the payment of the execution therein in bar of the? plaintiffs’ claim. Thereupon a riiotion was made to permit the-plaintiffs to pay back to the defendant the sum paid upon the judgment in.the first.action, to vacate and set aside the judgment and to-consolidate the two actions into one. This motion was granted, upon terms, and on the defendant’s refusing to receive the return of the moneys paid on such judgment they paid it, together-with the costs imposed upon the plaintiffs by the order, into court, under the authority so to do contained in the order, and an amended: complaint in the consolidated action, asking for judgment for $31,281.21 besides interest and costs, was served upon the defendant’s attorney pursuant to like authority, which amended complaint was received by the defendant’s attorney without objection. Thereafter, and on February 17, 1903, the defendant served an ■ offer of judgment in the consolidated action for $27,281.21. Afterwards, and on the 3d day of March, 1903, the plaintiffs desired to further amend their complaint in said consolidated action, and on application to the defendant’s attorney for permission so to do the attorneys for the respective parties on that day executed a stipulation as ■follows:
    
      “ It is hereby stipulated, that the plaintiffs may serve a second and further amended complaint in the above-entitled consolidated action, upon payment of ten dollars costs, the payment and receipt cf which is hereby acknowledged, and that the defendant may have twenty days from the date of such service in which to answer such amended complaint. Service of a copy of said amended complaint is admitted this day.”
    About a week after this stipulation was signed the defendant served a notice of appeal from the order of consolidation, and on March twenty-fourth the plaintiffs’ attorney received an answer to the second amended complaint in the consolidated action. Hone of the appeal papers were served upon the plaintiffs’- attorney until about a month and a third after the service of the notice of appeal and the same were forthwith returned to the defendant’s attorney with the notice that plaintiffs’ attorney refused to accept the same for the reason that they were not served in time, and also because the defendant had waived its right to appeal by entering into such stipulation and by receiving benefits under the order appealed from.
    This motion to dismiss the appeal was brought on before this court <on the first motion day of the last term and the court decided to reserve decision of the motion until it heard the argument of the appeal which was on its calendar for that term and which was after-wards heard.
    
      John W. Gena/way and John P. Badger, for the respondents.
    
      JSlon P. Brown and Henry Purcell, for the appellant.
   Chester, J.:

A careful examination of the papers leads us to the conclusion that the appeal should he dismissed. While such dismissal would, be entirely justified under rule 41 of the General Rules of Practice for the failure to file and serve the printed copies of the appeal papers within the time there required and for failure to include in. such papers many of the papers specified in the order as having been, used upon the motion, and also for failing to include in such papers-a copy of the opinion of the court at Special Term, yet we prefer to1 put our conclusion to dismiss the appeal upon the ground that the .appellant has waived its right to appeal. The order appealed from provided for a consolidation of the two actions into one and. authorized the service of an amended-complaint in the consolidated, action, and this was served. The stipulation permitted the plaintiffs to serve a second amended complaint in the consolidated action, and-as a condition of granting such favor the defendant received ten dollars from the plaintiffs who in turn gave the defendant additional time 'to answer therein. That was a complete recognition of -the existence of the consolidated'action, which consolidation had been made under and by virtue of the order afterwards appealed from. Before the appeal the defendant had served an offer of judgment and since the appeal' they have served an answer both in the consolidated action. These steps, together with the stipulation, all made without any reservation' whatever, are inconsistent-with an attempt by appeal to procure a reversal and annulment of the order pursuant to which the consolidated action exists. Even if on appeal such order should be reversed it is very questionable if the consolidated action would not still exist by virtue of the stipulation and the acts done pursuant and subsequent thereto.

We think under the facts here that there is a clear waiver of the-fight to appeal or prosecute an appeal from the order in question, and that the appeal should, therefore, be dismissed, with ten dollars costs- and disbursements.

All concurred, except Parker, P. J., dissenting.

Appeal dismissed, with ten dollars costs and disbursements.’  