East Coast Attic & Basement Co. v. Cytryn 13 A.D.2d 688

Motion by plaintiff to dismiss defendants’ appeal from an order of the Supreme Court, Nassau County, dated March 7, 1961, granting plaintiff’s motion to vacate an order of preclusion on condition that plaintiff pay $100 costs and serve its bill of particulars. The motion is made on the ground that defendants waived their right to prosecute the appeal by receiving, prior to the service of their notice of appeal, the $100 and the bill of particulars, and by retaining both. Defendants admit such receipt and retention. Motion granted; appeal dismissed. Nolan, P. J., Beldoek, Kleinfeld, Christ and Brennan, JJ., concur.