EARL, J.

The defendant Schrier moves to dismiss the appeal of the plaintiff from the order of the General Term affirming the order of the Special Term, granting him an extra allowance of costs, upon the ground that the order involved matter of discretion only in the court below, and was not, therefore, appealable.

The Code (§ 309) provides that "in difficult and extraordinary cases, where a defence has been interposed, or in such cases where a trial has been had," the court may "in its discretion, make a further allowance to any party, not exceeding five per cent upon the amount of the recovery or claim, or subject-matter involved." Under this provision, when there has been a trial of an issue of fact or law, the granting of an extra allowance of costs, within the limit specified, is in the discretion of the court below. Here it is claimed by Schrier's counsel that the limit has not been exceeded as the basis for the allowance must have been either the value of the railroad, $5,000,000, or the annual rental value thereof, upward of $400,000, and hence that the allowance of $4,000 was authorized. In this I think he was mistaken. The title to the railroad was not in dispute or controversy and was in no sense the subject-matter involved in the litigation. That was conceded to be in the plaintiff. Neither was the possession of the road the real and substantial subject of controversy. There was no dispute about that. If the lease was held to be valid the defendants were entitled to the possession of the road. If it was held invalid the plaintiff was entitled to the possession. The real controversy was as to the validity of the lease. When that was determined there was nothing left for dispute or controversy. The action was to determine its validity, and hence it was the subject-matter involved, and its value should have been taken as the basis of the extra allowance, and as there was no proof that it was of any value the extra allowance of $4,000 was wholly unauthorized and the appeal cannot be dismissed.

The defendants also move to dismiss plaintiff's appeal from the judgment entered upon the decision of the issue of law joined by defendants' demurrer to the complaint upon several grounds which I will notice separately.

The plaintiff, in its complaint, states that if the agreement annexed thereto should, by competent judicial authority, be adjudged to be legal and valid, the pecuniary result thereof would not be objectionable to it, and that "it would be content therewith." It is claimed that this statement in the complaint deprives the plaintiff of the right to appeal. A party may, doubtless, waive the right to appeal, or be deprived of it by stipulation. But the right to appeal is a valuable right and the agreement to surrender it must be based upon some consideration or the facts must estop the party from exercising it. Here the plaintiff has certainly received no consideration for the surrender of its right of appeal and there are no facts which enable the defendants to invoke the doctrine of estoppel against it. And further, there was no intention to waive or stipulate away the right of appeal. There is a simple statement that the plaintiff would be content with an adjudication that the lease was legal and valid. Nothing more was intended.

It is further claimed that plaintiff is estopped from prosecuting this appeal because it has, since the judgment and appeal, received the rent due upon the lease. The plaintiff has taken nothing by virtue of the judgment; it has simply continued to receive the rent since the judgment as it did before under the lease. Whether the lease should ultimately be held valid or not, and whether the appeal should be successful or not, the defendants being in the possession of the road and having the use and profit thereof, the plaintiff would, in some form, be entitled to some compensation for the use of its road. And the taking from time to time, during the progress of the litigation, what the parties have stipulated to be a precise equivalent for the use, cannot deprive the plaintiff of any valuable right, and certainly not of its right of appeal. If the lease was invalid when made because it was ultra vires, it could not be ratified by the receipt of the stipulated rent, or any other act of the parties.

It is further claimed that the appeal from the judgment should be dismissed, because from the facts appearing in the complaint the court had no jurisdiction of the defendants other than Schrier. That was the sole ground of demurrer by these defendants, and the court below sustained the demurrer upon that ground; and it is to review that decision that this appeal has been brought as against these defendants. It is not therefore proper to dismiss the appeal upon that ground, nor to decide the issue joined by the demurrer upon this motion.

The final claim is made that the record shows that process was not properly served upon the non-resident defendants, and hence, that the appeal should be dismissed as to them. After the defendants appeared and demurred they could not object that they had not been served with process. By their demurrer they raised the question that upon the facts stated in the complaint the court had no jurisdiction of their persons, not that they had not been served with process. Process may have been properly served; but while it appears in the record that the defendants appeared and joined an issue of law it is not important that it should appear how it was served upon them or that it was served at all. A defendant can never appear and join an issue of law or of fact without waiving all objections to the regularity or sufficiency of the service of process upon him.

I am therefore of opinion that the motion should be denied, with ten dollars costs.

All concur.

Motion denied.