#### CATHARINE L. PHIPPS, Respondent, *v.*THOMAS D. CARMAN, Appellant.

*Costs of a motion*— what are— *Code of Civil Procedure, sec.*779.

The costs and disbursements of an appeal to the General Term, from an order made at a Special Term, are “ costs of a motion ” within the meaning of these words as used in section 779 of the Code of Civil Procedure, and a failure to pay them stays all proceedings on the part of the party in default.

Appeal from that part of an order made at a Special Term refusing to set aside an inquest, -which imposed as a condition that the appellant pay ten dollars costs of the motion and thirty dollars trial fee.

The defendant claimed that the inquest was irregular, because at the time it was taken all proceedings on the part of the plaintiff were stayed by her failure to pay the costs and disbursements granted by an order of the General Term upon affirming on appeal an order made at a Special Term.

*D. P.*Barnard, for the appellant.

*George P.*Avery, for the respondent.

Barnard, P. J.:

A direction of a court not contained in a judgment is an order. (Code, § 767.) An application for an order is a motion. (Code, § 768.) The order of the General Term upon appeal from an order comes within these sections, and therefore falls within section 779, which stays all proceedings when “ costs of a motion ” are given until “ the payment thereof.”

The application for the direction of the General Terms, which is subsequently and after argument embodied in the order affirming or reversing the subject of the appeal, is a motion. This conclusion is in harmony with the principle enacted in section 779. That section was designed to prevent motions, unless meritorious and well founded, from being made. Irresponsible parties could and did make great trouble and annoyance by speculative and frivolous motions, and it was deemed wise by the legislature to enact that unpaid motion costs should work a stay. There is no reason why *519costs of an appeal from an order should be made an exception. Such a construction would not reach the annoyance. An appeal from an order may be made without payment of the costs of the order appealed from. If, after a hearing at General Term, those costs are not to be held within the section, appeals may be taken from orders without due consideration, and possibly for mere annoyance.

The rule as to costs upon a motion is applied by the Code (sec. 3233) to interlocutory costs upon an issue of law the same as if *“*they were costs of a motion.” This enlarges the scope of section *779,*as originally passed.

Section 3239 has no relevancy to the question. It becomes a question under the wording of the old Code, whether when there was an appeal from a judgment and also from an order granting or refusing a new trial, the successful party could have double costs or costs of two appeals. This section was passed to settle that question.

The order should be modified by striking out the part of the ' order appealed from, without costs of .the appeal.

Dykman, J.:

An order was made at Special Term in this action, that the report of the referee be taken from the files of the court, and all proceedings in the action subsequent to the filing of the report be set aside for irregularity, and that the plaintiff pay 'to the defendant ten dollars costs of the motion. On appeal the order was affirmed with ten dollars costs and the disbursements on appeal, and the disbursements were adjusted at twelve dollars and seventy-eight cents. The ten dollars costs were paid, but the disbursements have not been paid.

The plaintiff’s attorney noticed the cause for trial at the circuit and took an inquest, though his notice of trial was returned, and the defendant’s attorney served no notice of trial. Now a motion to set aside the inquest on the ground of- such irregularity has been granted on payment by the defendant to the plaintiff of a trial fee. and ten dollars costs of the motion. From this latter part of the order there is an appeal. There is no written opinion, but it seems to be understood that the decision was made on the theory that 'the *520costs of tbe appeal to the General Term are not costs of a motion within the meaning of section 779 of the Code of Civil Procedure.-

This seems to be a narrow view of the law. ' It was intended to prevent an onward movement in an action by a party who owed costs of a motion, and certainly the reason and spirit of the law includes all costs of a motion in any of its stages. This motion went to the General Term on appeal. There it was in the category of motions, and no more than ten dollars could be allowed as costs besides the disbursements. It was there really and in fact a continuation of the motion in the same court on appeal.

Our view is that the costs and disbursements on appeal from an order from the Special Term to the General Term of the Supreme Court, are within the spirit of the law and the mischief it was intended to prevent.

The portion of the order appealed from should be reversed, without costs.

Present — Barnard, P. J., and Dykman, J.; Gilbert, J., not sitting.

Part of order appealed from reversed, without costs of this appeal.