There is no doubt as to the general rule that when a party accepts the beneficial portion of a judgment or order he waives his appeal. This rule is subject to this modification, that when the thing or portion accepted is not inconsistent with the appeal, it is not a waiver. Knapp v. Brown, 45 N. Y., 210.
The present action was brought to have a partition or sale of lands which were left by William Alexander, the father of plaintiff and defendant. It appeared upon the trial that the deceased had deeded to both his sons, in his life-time, certain parcels of real estate, a by far larger amount to the defendant than to the plaintiff. The court held the conveyance to both children to have been intended as advancements. The decree provides that the proceeds of the sale should be first applied to pay the plaintiff the excess between the amount given the defendant and that given plaintiff, and after that that the children should take equally.
The property was sold, and after paying the excess of *511advancements as determined, there was a sum of $6,183.23 which each party was entitled to. The appellant has received this sum. There is nothing inconsistent between the appeal and this receipt of the money to which the appellant was at all hazards entitled to.
There is no objection to the judgment, except hi the single fact that the charge of the value of the property deeded to the appellant by deceased was wrong and should be reversed. If that is done, the sole effect will be to increase the sum to which appellant is entitled.
Motion to dismiss appeal denied.
Dykman, J., concurs.