Appeal from order entered on June 28, 1961, denying motion to dismiss for lack of prosecution, unanimously dismissed, without costs. It appears without contradiction that the motion was denied on condition that plaintiff pay costs to date and that these costs were accepted and retained by defendants' attorneys. Under these circumstances the right to appeal is waived and the appeal must be dismissed ( James v. Ouimet, 283 App. Div. 819, and authorities cited therein). Motion to dismiss appeal dismissed, having become academic by virtue of the decision of this court decided herein.
Concur — McNally, J.P., Stevens, Eager, Steuer and Bastow, JJ.