
    Myra L. Wood, as Executrix, etc., App’lt, v. Emma Richardson, as Executrix, etc., et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 27, 1895.)
    
    Appeal—Waived.
    One who receives the benefit of an order waives the right to appeal therefrom. So held, where an order allowing a party to intervene provides that, if he fails to serve an answer within a certain time, the plaintiff may enter judgment, but, if an answer is served, the entry of judgment shall be stayed until the action is tried, and, before serving his answer the intervener shall pay plaintiff ten dollars costs.
    Appeal from an order allowing Joseph B. Richardson an others to intervene.
    E. B. Merrill, for app’lt ; Booraem, Hamilton, Beckett & Ransom, M. C. Milnor, John McDonald, and Rollins & McGrath, for resp'ts.
   BROWN, P. J.

—Thir action was commenced by the appellant against Emma Richardson and William T. Washburn, respectively executrix and executor of the last will and testament of Benjamin Richardson, deceased. On the 8th day of October, 1895, upon the petition of Joseph B. Richardson and five other persons, being the next-of kinOof said Benjamin Richardson, deceased, an order was made at the special term allowing said petitioners to intervene in the action, and to serve answers to the complaint within twenty days from the entry and service of the order. In case said answers were not served, plaintiff was to be allowed to enter judgment against the executors without further notice, and in case such answers were served, plaintiff was stayed from entering judgment against said executors until the termination of the trial of the action. The final provision of the order was as follows: “It is further ordered that the petitioners pay to the plaintiff or her attorney $10, costs of his motion, on or before the service of the answer to the complaint herein.”

Within the time specified in the order, the petitioners served their answers on the plaintiff’s attorney and paid to him the costs, which were accepted and have been retained by him. Thereafter the plaintiff appealed from the order, and the respondents have moved, upon the .foregoing facts, to dismiss the appeal.

We are of the opinion that the award of costs was conditional, and not absolute. They were to be paid on or before the service of the answers. If the answers were not served, the respondents were under no obligation to pay them; and in the absence of the service or the answers, payment pould not have been enforced by the-appellant. The appellant, having, therefore, accepted and retained the costs, cannot appeal from the order. One who receives the benefit of an order waives the right to appeal. Radway v. Graham, 4 Abb. Prac. 468 ; Lewis v. Insurance Co., 15 id. 140. The case before us differs from that of Farmers’ Loan & Trust Co. v. Bankers’ & Merchants’ Tel. Co., 109 N. Y 342; 15 St. Rep. 516, in' that, in that case, the award of costs was absolute, and the appellant’s right to them was perfect.

The motion must be granted, with $10 costs.

All concur.  