Van Woert v. Ackley

10 N.Y.S. 673, 63 N.Y. Sup. Ct. 375

Opinion

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 from. 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.