Andrew Van Woert, App’lt, v. Willis Ackley, Resp’t.
(Supreme Court, General Term, Fourth Department
Filed May 23, 1890.)
Stay — Nonpayment oe costs.
A stay of proceedings cannot be granted under § 779 of the Code for non-payment of costs of an appeal from, an order granting a new trial on the merits.
(Following Fhsenlord v. Clum, 34 N. Y. State Rep., 103.)
In the Otsego circuit of January, 1887, the plaintiff had a verdict for $155. A motion for a new trial on the judge’s minutes was made by the defendant and granted by H. Boardman Smith, J., who presided at the trial; and he based his order granting such trial upon an error committed in the charge, and the order allowed “$10.00 costs to abide the. event” The plaintiff took an appeal from that order to the general term, and after a consideration of the appeal, the general term, on the 13th of November, 1888, affirmed the order with costs, and the defendant entered a judgment of affirmance and for his costs, $89.03, December 21, 1888. -On the 14th of January, 1889, at a circuit and special term held in Otsego county, an order was granted containing the following *384words ; “ That plaintiff be and he is hereby stayed from prosecuting or moving said case, or taking any proceeding therein toward enforcing the trial thereof until .the costs of the appeal from the. order granting the motion for a new trial are paid.” At a special term held on the 14th of May. that order was resettled and amended by the same justice who granted the same; and the plaintiff appeals from the order “ staying plaintiff from moving this cause for trial until the costs of the appeal from the order granting the motion for a new trial are paid, and from each and every part of said order.”
TF". J. Palmer, for app’lt; G. L. Wilbur, for resp’t.
Hardin, P. J.
Inasmuch as the ten dollars costs of motion in the order of January, 1887, were allowed to abide the event, the non-payment of them by the plaintiff does not permit the defendant to avail of the provision in § 779 of the Code, of Civil Procedure in respect to a stay of proceedings. Upon the questions made as to the non-payment of the costs of the appeal included in the judgment of affirmance of the order granting -a new trial, which costs amounf to $89.03, the cases of Eisenlord v. Clum and others, 24 N. Y. State Rep., 102, and Verplanck v. Kendall, 47 Superior Court, 15 J. & S., 513, are in point, and adverse to the decision made at special term in this case; however, Phipps v. Carman, 26 Hun, 518, seems to be a decision which would support the order appealed from. An examination of chap. 390, § 3, of the Laws of 1847, of § 779 as it appeared in the Code of Remedial Justice, being chap. 448 of the Laws of 1876, 2d. vol, of the Session Laws of 1876, p. 146, and § 12 of chap. 431 of the Laws of 1876, vol. 1 of the Session Laws of 1876, p. 456; Mr. Throop’s note to § 779 of the Code of Civil Procedure, inclines us to follow the decision of the third department in Eisenlord v. Clum and others, supra.
We think the order should be reversed.
Order reversed, with ten dollars costs and disbursements.
Martin and Merwin, JJ., concur.