Verplanck v. Kendall

15 Jones & S. 513

Opinions

Speir, J.,

writing for affirmance, said : “I am of the opinion that the putting the cause on the calendar and the giving or accepting a notice of trial, waives the stay under section 779 of the Code.....

“It is only costs of motion which are referred to in section 779. A motion is defined in section 768, 4 An application for an order is a motion, and when granted is a direction of the court or judge.’ An appeal taken to the general term, asking for a judgment of reversal of the order made below, is not made by a motion for an order, but the appeal is made upon notice. . . .

“ Section 8,239 clearly makes a distinction between the disposition to be made of costs of a motion directed by an order to be paid, and the costs of an appeal from an order.”