#### John H. Eisenlord, App’lt, *v.*David H. Clum *et al.,*Resp’ts.

*(Supreme Court, General Term, Third Department,*

*Filed May 27, 1889.)*

1. Costs—Code Civil Peo., § 779. Section 779, Code Civil Procedure, does not apply to costs of an appeal from an order granting a new trial on the merits.

2. Complaint—When not dismissed—Code Civil Peo., § 980. A defendant under section 980. Code Civil Procedure, having noticed his cause, may bring it to trial and take a dismissal of the complaint if the plaintiff is not ready to proceed, but where the plaintiff is ready and anxious to proceed, and the defendant then insists that the plaintiff shall not proceed, it is unreasonable, under such circumstances, to permit defendant to take a dismissal of the complaint.

Appeal from a decision made at the February circuit, 1889, in Montgomery county, on the trial of this action directing the clerk to enter an order dismissing the complaint.

After the order granting a new trial, with costs, both parties noticed the cause for trial, and placed it on the calendar for said February circuit. Plaintiff’s notice of trial was received and not returned. There was no notice of motion on part of defendants to dismiss the complaint. The notice was that defendants would try the case, and plaintiff came to circuit prepared to try accordingly. On first day of the circuit, the case was reached on the calendar, and by request of plaintiff, no one opposing (on the ground costs had not been paid, and plaintiff’s proceedings stayed, or otherwise) trial was reserved until following Thursday. On that day both parties appeared, and on request of plaintiff’s counsel that trial be reserved to Monday, it was, in fact, reserved to Saturday. No objection was then made by defendants, and the trial was again reserved on motion of plaintiff to Monday. On Monday the cause was reached and “moved for trial by plaintiff, and a jury empanelled.” (No objection was made by defendants.) “ The plaintiff’s and defendants’ counsel each examined the jurors as to their qualifications.” (No objection was made by defendants.) “ The plaintiff’s counsel opened the case to the jury.” (No objection was made by defendants.) When, at this point, plaintiff’s counsel offered testimony, defendants’ counsel objects and claims plaintiff’s proceedings are stayed for non-payment of' costs of the former appeal to general term, etc. No notice, that the costs in question had been taxed for any sum whatever, appears to have been served on plaintiff or his attorney.

*A. J. Abbott,*for app’lt; *D. S. Morrel,*for resp’ts.

Per Curiam.

Section 779 of the Code of Civil Procedure speaks of' “ costs of a motion or any other sum of money.” This language does not apply to the costs of an appeal from *103an order granting a new trial on the merits. The costs granted on such an appeal are not “ costs of a motion or a sum of money directed by an order to be paid.” Therefore the Code did not stay plaintiff’s proceedings in this case.

Even if there had been a stay of plaintiff’s proceedings under this section, still the defendant’s practice was wrong. Under section 980 the defendant having noticed the cause, might bring it to trial and might take a dismissal of the complaint, if the plaintiff was not ready to proceed. But here the plaintiff was ready and anxious to proceed, and the defendant insisted the plaintiff should not proceed. Under such circumstances, it was unreasonable to permit defendant to take a dismissal of the complaint. If there had been some motion costs which remained unpaid and the defendant had insisted on the benefit of section 779, all he should have had would have been a mere stay of proceedings.

The defendant was blowing hot and blowing cold; insisting under his notice of trial that plaintiff should proceed, and under the non-payment of the costs that he should not.

The order is reversed, with ten dollars costs and printing disbursements.