#### Thomas Canary, respondent, *v.*Edwin Knowles and Theodore Morris, appellants.

*(Supreme Court, General Term, First Department,*

*Filed October*15, 1886.)

1. Practice — Appeal — When a party waives ms right to appeal FROM ORDER.

The plaintiff procured an order of injunction forbidding defendants to do certain things and requiring them to show cause on a day named why the injunction should not be made permanent. And on the return of the order to show cause an order was made making the injunction permanent, hut with a proviso that upon the service of a certain stipulation upon the plaintiff’s attorney, the injunction should stand dissolved.- The stipulation required by the order was duly made and served, but was endorsed with a notice to the effect that it was served in pursuance to the aforesaid order but under protest and is not to be considered as constituting assent by defendants to such order or any waiver of the defendant’s right to appeal therefrom. *Held,*that by serving the stipulation and accepting the benefit conferred by the order, the defendants’ rigb t to appeal from the order was waived. (Following Chopin v. Foster 33, *Alb. L. J.*33). That the service of the protest by defendant, did not prevent their action from operating as a waiver of their right to appeal. (Following *Dambmann v. Schultina,*6 *Hun.*29).

Appeal from order confirming injunction during pendency of action.

*14*Hirsh, &*Rasquin, attorneys for appl’ts; *Greorge W.*Wingate, of counsel. *W. Bourke*Cochran, for resp’ts.

Churchill, J.

December 10th, 1885, plaintiff procured an order of injunction, forbidding defendants to allow any person, other than the plaintiff, to occupy for dramatic purposes the building known as the “ Grand Opera House,” in the City of Brooklyn, during the week commencing December 21st, 1885, or until the further order of the Court; and also ordering the defendants to refrain from interfering in any manner with the right of the plaintiff to occupy the same during that week.

The order further required the defendants -to show cause at a Special Term, to be held at Chambers, in New York, December 19th, 1885, why the injunction should not be continued during the pendency of the action. On the 19th, cause was shown, and an order made by the Court, continuing and making permanent the injunction, but with the following proviso added: “ Provided, however, that in case the defendants shall serve a written stipulation, that the damages to be recovered by the plaintiff in this action (in case he shall be decreed to be entitled to recover damages from the defendants therein) will be two thousand ($2000) dollars, less the expenses of the salaries of the company for the week in question, which the plaintiff will not be bound to pay; that upon the service of such stipulation, signed.by the defendants’ attorneys, upon the plaintiff’s attorney, the injunction hereby granted shall thereupon stand dissolved.”

December 21st, the defendants executed and served the stipulation called for by the proviso, and the injunction was thereupon dissolved. Endorsed upon the stipulation as served, was the following notice

> “ Please take notice, that the within stipulation is made and served in pursuance of the injunction order of the 19th inst., and that the same is made and served under protest, and is not to be considered as constituting our assent to such order or any waiver of the defendants’ right to appeal therefrom. Dated December 21st, 1885.

> Hirsh *&*RasquiN,

> Attorneys for defendants.

> To *W.*Bourse Cochrah, Esq.,' •

> Attorney for plaintiff.

December 22nd, the defendants appealed from the order of December 19, and every part of it to the General Term.

The proviso of the order was a favor to the defendants. It put within their power to obtain, what, in showing cause, they were seeking to obtain, i. e., a dissolution of the injunction. *15They availed themselves of the proviso and thereby obtained such dissolution.

This action on their part was inconsistent with, and a waiver of their right to appeal from the order. *Smith*v. Rathbun, 75 N. Y. 122; Baylies on New Trials and Appeals, 19 *et seq.,*and cases cited. 4 Waits Pr. 216.

It cannot be said that the defendants acted under duress in serving the stipulation. Had the proviso been omitted, their only remedy would have been an appeal from the order. This remedy was equally open to them, the proviso being added. *Chapin*v. *Foster*(N. Y. Court of Appeals), 33 Alb. L. J. 33.

The case just cited recognizes the rule “ that a party who has availed himself of provisions in his favor contained in an order, has thereby waived the right to appeal from other provisions therein which are adverse to him.

The defendants in acting upon the proviso, and serving the stipulation made the plaintiff’s' situation less favorable than it was when the order appealed from was made, since by their action the injunction was dissolved, and they could not after that insist upon their right of appeal. *Grunberg*v. Blumenthal, 66 How. 62.

The protest served did not prevent the defendants’ action operating as a waiver of their right to appeal. *Dambmann*v. *Schulting,*6 Hun. 29.

The order appealed from should be affirmed, with ten dollars costs, and usual disbursements.

DANIELS and Beady JJ., concur.