RADWAY a. GRAHAM

RADWAY a. GRAHAM. New York Common Pleas; General Term, January, 1857. Appeal.—Waiver.—Payment of Costs. If a party to an action proceeds upon an order made in the cause, or accepts any benefit or advantage under it, he will be precluded from asking its review. Therefore, where an order was granted that defendant be allowed to answer on payment of costs, and plaintiff accepted the costs and received the answer,— Held that the acceptance of the costs, if they were received before appeal taken, was a waiver of the right of appeal, and if after, was a waiver of the appeal. Appeal from an order at special term, setting aside a judgment on payment of costs, and allowing defendant to answer on the merits. Charles N. Buck, for the appellant. John Graham, for the respondent. [MAJORITY — By the Court.—Brady, J.] By the Court.—Brady, J. —The order appealed from, made at special term, on the 23d of September last, was granted upon the payment of the costs therein mentioned. The appellant, within the period of fourteen days thereafter, received from the defendant the costs so directed to be paid, and the answer which by the order the respondent was permitted to interpose. It does not appear from the papers submitted whether the appeal was taken before or after the costs were paid. I think, however, that it is not very material, in reference to the principle on which this appeal be decided. The receipt of the costs must be regarded as a waiver of the appeal, if received after the appeal taken, and of the right to appeal, if they were received before the appeal was taken. If a party to the action proceed upon an order made in the cause, or accept any benefit or advantage under it, he will be precluded from asking its review. Moreover, it is not usual to order restitution on appeals from orders made at special term; and if the order appealed from were reversed, such a direction would seem to be called for. The order must be affirmed.