
    JOSEPH TAUSSIG, and others, Plaintiffs and Appellants, v. JULIUS HART, Defendant and Respondent.
    The imposition of costs as a condition of granting a motion is such a benefit, that the acceptance of the same, and the subsequent action of the parties, based upon the order, waives the right to appeal from the order.
    A party cannot accept and act upon the terms of an order, and also appeal therefrom.
    A defendant moves the court for leave to amend his - answer. Upon the motion the court orders that leave be granted upon payment of ten dollars costs to plaintiff. The answer as amended is served and the costs paid, and accepted by plaintiff, and plaintiff replies to the amended answer, and a trial commences on the issue thus joined, but in the mean time, after all this, plaintiff appeals from the order (within the time allowed for an appeal by law). On motion to dismiss the appeal,—Meld, that plaintiff had waived his right to appeal from the order by accepting the costs of the motion.
    Before Monell, McCunn, and Jones, JJ.
    
      Decided March 4, 1871.
    Motion to dismiss an appeal heard before the six judges of the court, at the December general term, 1870.
    It appeared from the moving papers, that on July 9,1870, an order was made and entered at special term, allowing an amendment of the defendant’s answer upon payment by the defendants to the plaintiff of ten dollars costs of opposing the motion, and on the twelfth of the same month, a copy of the order and of the amended answer was duly served on and received by the plaintiff’s attorney, and the ten dollars costs were also paid to and received by him. On the same day the plaintiff’s attorney served the defendant’s attorney with a reply to the new matter contained in the amended answer. Thereupon, the trial of the action was proceeded with before a referee, who had been previously appointed, and was finally submitted for his decision on July 37, 1870. Within the time allowed bylaw, the plaintiff’s attorney served a notice of appeal from the order upon the defendant’s attorney, but, through inadvertance, did not serve a like notice upon the clerk of the court. The motion to dismiss the appeal was upon two grounds : First, that the plaintiff had waived the right to appeal, by accepting the costs of the motion ; and second, the failure to serve the notice of appeal upon the clerk of the court.
    
      Mr. E. L. Andrews, for appellants.
    
      Mr. E. P. Clark and Mr. Wilber Shaw, for respondent.
   By the Court.—Monell, J.

I think it is very clea,r that this appeal must be dismissed upon the first ground. The cases seem to uniformly hold, that the acceptance of any benefit or advantage under an order, or acting upon the order, operates as a waiver of the right to appeal.

In Rad way v. Graham (4 Abb. Pr. 468), the general term of the common pleas held, that the imposition of costs, as a condition for granting a motion, was such a benefit, that the acceptance of them waived the right to appeal.

That case has been followed by Lewis v. Irving Ins. Co. (in a note to Hanna v. Dexter, 15 Abb. Pr. 140), in the supreme court; and in this court, by Lupton v. Jewett (1 Robt. 639).

In Noble v. Prescott (4 E. D. Smith, 139), the order allowed a renewal of the motion, which the party availed himself of; and it was held to be a waiver of the right to appeal.

This case is stronger than any of them. Here the appellants not only accepted the costs, but also the answer, to which they served a reply, and then proceeded with the trial.

All this action under the order would of itself, it seems to me, preclude an appeal.

The stipulation between the attorneys that the appeal should be heard upon certain papers, was not a waiver of the right to make this motion. The papers included an affidavit of all the facts upon which this motion is founded, put in, for the purpose of raising the question on the argument of the appeal, as was done in Radway v. Graham (supra). But the defendant’s attorney has pursued a better practice, and brought the matter before the court, upon notice to the opposite party.

Hor have there been sufficient laches to defeat the motion, even although the right to make it might be lost by laches. It is not required, I think, that it should be made at first or earliest opportunity ; and may be made, as was done in some of the cases, when the appeal is brought on for argument.

Irregularities in practice are sometimes cured or waived, by admitting to take early advantage of them. But this was not an irregularity (1 Tidd’s Pr. 512), but a substantial act of the party, and was not waived by laches.

I do not propose to examine the second ground of objection, although I think it may be correctly said, that it is sustained by the clear weight of authority. See the case, collected in notes to VoorMes’ Ed. of the Code, §§ 327, 332.

I am in favor of granting this motion, with costs.

McCunn, J.

I concur. The order appealed from was a conditional order (the payment of costs, &c.). The conditions were tendered' by defendant and accepted by plaintiff; they cannot, therefore, accept the terms of the order and appeal at the same time. They must do one thing or the other. They selected and accepted the terms; this, therefore, bars their appeal (Pearce v. Chaplin, 9 Q. B., 802 ; 16. L. I. Q. B., 49 ; Bartlett v. Stinton, 1 L. B. C. P., 238; 14 W. B., 614 ; 14 H. T. N. S., 287 ; Dodsey v. Hamilton, 5 Saund. 1). The plaintiff in this case, in addition to accepting the costs imposed on the granting of the motion, accepted the amended answer. This, he claims, was merely an irregularity on his part, which he should be allowed to remedy. How, if a party lies by after an irregularity, and he knowingly, as in this case, prevents the other party from taking further steps in the case before he moves to take advantage of the irregularity, this is a waiver of such irregularity (Gair v. Goodman, 2 Smith, 291).

Jones, J.

The appeal from the order allowing an amendment having been dismissed, on a ground which would have been fatal to it even if there had been a proper service of notice on the clerk, it is' unnecessary to decide whether the order from which this appeal is taken is correct or not, since the reversal of that order and the entry of an order to the effect asked for will not reinstate the appeal from the order allowing the amendment, and can in no wise benefit the appeal.

Appeal dismissed without costs.

Freedman and Spencer, JJ., concurred in the opinion of Judge Monell.  