In re the Assignment of Raber

The rule invoked by the moving party is well settled. A party cannot take the benefits of an order or judgment and then appeal from such portions as are unfavorable to him. Carll v. Oakley, 97 N. Y., 633; Bennet v. Van Syckel, 18 N. Y., 481. There arises an exception to this rule, when the receipt of the benefit under the judgment is not inconsistent with the appeal as when the provisions of the decree are not connected and dependent and the appellant can establish a right to a larger sum without reversing the entire judgment. Knapp v. Brown 45 N. Y., 210; Alexander v. Alexander, second department, 1 N. Y. State Rep. 510. Reversed in the court of appeals, 5 N. Y. State Rep.

The record is not returned and the court may see from the moving papers whether the appellant falls under the rule of the exception.

Motion denied with leave to respondent to raise the question again on the argument of the appeal.

Motion denied with ten dollars costs.

Dykman and Pratt, JJ., concur.