Opinion
Argued April 10, 1888
Decided April 24, 1888
Herbert B. Turner for appellant. Robert H. Griffin for respondent.
Upon motion on notice at Special Term, the plaintiff obtained leave "to file and serve a supplemental complaint * * * with ten dollars costs of motion to the United Lines Telegraph Company." The defendant received the costs, and on the 5th of December, 1887, appealed to the General Term from the rest of the order. On the 29th of December, 1887, the plaintiff gave notice of a motion to dismiss that appeal upon the ground, so far as now insisted upon, that the right to appeal had been waived by accepting the costs so ordered to be paid. On the 3d of January, 1888, the motion was denied, and on the 23d of January, 1888, the General Term reversed the order of the Special Term. The plaintiff appeals to this court from the order denying its motion to dismiss and also from the order of reversal.
It is a sufficient answer to the first that the imposition of costs does not appear to have been conditional, but does appear to be absolute Leave was granted to the plaintiff to serve a new pleading, and costs were granted to the defendant. Had the plaintiff refused to avail itself of the permission to plead anew, it would still have been liable to the defendant for the costs of motion. They are given absolutely and are neither connected with nor dependent upon that portion of the order which was appealed from. A review could be had of that part without affecting the rest. It was not so in the cases cited by the learned counsel for the plaintiff. In those relief was granted upon condition, as in Radway v. Graham (4 Abb. Pr. 468), an answer was allowed upon payment of certain costs. In Marvin v. Marvin (11 Abb. [N.S.], 97. 99), a decree was modified upon condition. In Platz v. City of Cohoes (8 Abb. N.C. 392, 397), a new trial was granted upon terms which were complied with and accepted by the party benefited. In all these and others that are cited, it was held that one receiving the benefit of an order waives the right to appeal, but in the case at bar the defendant only received what belonged to it and to which its right was perfect, whether the plaintiff availed itself of the leave given by the order or not. He was at liberty, therefore, to contest the part giving that leave. ( In re Water Comrs. of Amsterdam, 36 Hun, 534.) I think there is no ambiguity in the order in this respect, but if there were, its construction by the court making it should be conclusive.
As to the other appeal, it is well settled that an order allowing or refusing leave to serve a supplemental complaint is a matter within the discretion of the Supreme Court, as that discretion may finally be exercised by the General Term, and it is not the subject of review in this court. ( Fleischmann v. Bennett, 79 N.Y., 579.) The learned counsel argues that the action of the General Term was not had in the exercise of its discretion. That, however, does not appear. The order, to which alone we look, is one of reversal merely, and indicates no doubt on the part of the court as to its power or any misconception in its exercise. It is, therefore, unnecessary to inquire whether in any view a case was made for a supplemental complaint, for, whatever our conclusion might be, we could not review the decision of the court below in that respect.
Both appeals should, therefore, be dismissed, and as there are two records, with costs of each appeal.
All concur.
Appeals dismissed