#### WOOD v. RICHARDSON et al.

(Supreme Court, General Term, Second Department.

December 27, 1895.)

Appeal—Waiver of Right.

Where an order allowing a party to intervene provides that, if he fails to serve an answer within a certain time, plaintiff may enter judgment,

but, if an.answer is served, that the entry of judgment shall be stayed till the action is tried, and that, before serving his answer, intervener shall pay plaintiff $10 costs, plaintiff, by accepting the costs, waives his right to appeal from the order allowing the intervention. Farmers’ Loan & Trust Co. v. Bankers’ & Merchants’ Tel. Co., 16 N. H. 539, 109 N. *Y.*342, distinguished.

Appeal from special term.

Action by Myra L. Wood, as executrix of Horace G-. Wood, against Emma Richardson, as executrix, and others. From an order allowing Joseph B. Richardson and others to intervene, plaintiff appeals.

Dismissed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

E. B. Merrill, for appellant.

Booraem, Hamilton, Beckett & Ransom, M. O. Milnor, John McDonald, and Rollins & McGrath, for respondents.

BROWN, P. J.

This 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 kin of 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 20 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 this motion, on or before the service of the answers 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 plain*1002tiff 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 of the answers, payment could 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 Abb. Prac. 140. The case before us differs from that of Farmers’ Loan *&*Trust Co. v. Bankers’ *&*Merchants’ Tel. Co., 109 N. Y. 342, 16 N. E. 539, 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.