Opinion
October 25, 1965
Motion by defendants to dismiss appeal on the ground that the right to appeal has been waived. Plaintiff appeals from an order of the Supreme Court, Queens County, dated August 10, 1965, which granted defendants' motion to vacate a judgment entered against them after inquest and to permit service of their answer on condition that (1) defendants pay plaintiff $150 "as compensation for the expenses of the inquest"; and (2) the judgment already entered stand as security for any future recovery. The payment of $150 has been made and accepted. Motion granted, without costs; appeal dismissed. Plaintiff's acceptance of the payment constituted a waiver by it to appeal from the conditional order ( Brenner v. Steven Plumbing Supply Co., 279 App. Div. 1087; Ocean Road Terrace Co-Op. Apts. v. Necko Operating Corp., 20 A.D.2d 660). Christ, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.