#### Van Woert v. Ackley.

*(Supreme Court, General Term, Fourth Department.*

April, 1890.)

1. Costs—Remedies.

Code Civil Proc. N. *7.*§ 779, provides that where costs of a motion, directed by an order to be paid, are not paid within the time fixed, or, if no time is fixed, within 10 days after the service of the order, all proceedings on the part of the party required to pay them, except to vacate the order, are stayed, without further direction of the court, until payment. The section further provides that, when the order directs that the costs of the motion abide the event of the action, they may be taxed as a part of the costs of the action, or set off against costs awarded to the adverse party, as the case may require'. On motion of defendant, an order was made granting a new trial, “with $10 costs, to abide the event, ” and, on appeal, the order was affirmed. *Held,*that defendant could not have an order staying proceedings by plaintiff -because of the non-payment of such costs.

2. Same.

Neither will the non-payment of the costs included in the judgment of affirmance of the order granting a new trial justify such an order staying proceedings.

Appeal from special term, Otsego county.

Action by-Andrew Van Woert against Willis Ackley. 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. Boardmán 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 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 words: “That plaintiff be, and he is hereby, stayed from prosecuting or moving said case, or taking any proceeding therein towards 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. ” Code Civil Proc. N. Y. § 779, provides that where costs, directed by an order to be paid, are not paid within the time fixed, or, if no time is fixed, within 10 days after the service of the order, all proceedings on the part of the party required to pay them, except to vacate the order, are stayed, without further direction of the court, until payment of such costs; and that, when the order directs that the costs of the motion abide the event of the action, they may be taxed as a part of the action, or set off against costs awarded to the adverse party, as the case may require.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

*W. J. Palmer,*for appellant. *C. L. Wilbur,*for respondent.

Hardin, P. J.

Inasmuch as the $10 costs of motion in the order of January, 1887, were allotted to abide the event, the non-payment of them by the plaintiff does not permit the defendant to avail of the provision in section 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 amount to $89.03, the cases of *Eisenlord*v. *Clum,*5 N. Y. Supp. 512, and *Verplanck*v. *Kendall,*47 N. Y. Super. Ct. 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 *674from. An examination of chapter 390, § 3, Laws 1847, of section 779 as it appeared in the Code of Remedial Justice, (being chapter 8, p. 146, vol. 2, Laws 1876,) and section 12, c. 431, p. 456, vol. 1, Laws 1876, and Mr. Throop’s note to section 779 of the Code of Civil Procedure, inclines us to follow the decision of the third department in *Eisenlord*v. *Clum, supra.*We think the order should be reversed. Order reversed, with $10 costs and disbursements. All concur.