
    GOODSTEIN v. FEINBERG.
    (Supreme Court, Appellate Term, First Department.
    November 8, 1912.)
    1. Appeal and Error (§ 870*)—Waiver Affecting Right—Appearance— New Trial.
    Where plaintiff did not appeal from an order setting aside a judgment for him and ordering a new trial, but proceeded with the new trial without objection, he was precluded from afterwards contesting the validity of that order on appeal from a judgment for defendant.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3451, 3487-3489, 3491-3512; Dec. Dig. § 870.*]
    2. Appeal and Error (§ 1011*)—Conclusiveness of Finding—Conflicting Evidence.
    A judgment on a question of fact as to which the evidence is conflicting will not be disturbed.
    [Ed. Note.—For other cases,, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]
    *For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Harris N. Goodstein against Joseph H. Feinberg. From a judgment of the Municipal Court, rendered in favor of the defendant, plaintiff appeals.
    Affirmed.
    Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.
    Barnett & Jablow, of New York City, for appellant.
    Mortimer W. Solomon, of New York City, for respondent.
   PER CURIAM.

This is an appeal taken by the plaintiff from a judgment in favor of the defendant.

The notice of appeal states that the appeal will bring up for review an order made by a justice of the Municipal Court, before whom the case was once tried, setting aside a judgment in favor of the plaintiff and ordering a new trial. No appeal was taken from that order, and the plaintiff appeared upon the day fixed for a néw trial and proceeded therewith without objection. He is thereby precluded from now contesting the validity of- that order, which could only be done upon appeal therefrom.

Upon the merits of this appeal there was nothing but a question of fact, with conflicting evidence, and the judgment, not appearing to be against the weight of evidence, should not be disturbed.

Judgment affifmed, with costs.  