Anonymous — 4 Abb. N. Cas. 11

Majority

p. 11

ANONYMOUS.

N. Y. Supreme Court; General Term,

January, 1878.

Headnote

Stay by Non-Payment of Costs.^[1]

The non-payment of costs of a motion, directed by the order to be paid, does not stay any proceedings necessary to enable the party in default to review the order by an appeal.

Preliminary objection to motion.

This action was for an alleged libel. The defendant, at special term, moved to strike out the complaint for reasons specified in the moving papers, and the motion was granted.

The plaintiff appealed to the general term from said order striking out the complaint. The defendant noticed the appeal for argument at January term, 1878, and when the cause was reached in order upon the calendar, took a default, and dismissed the appeal.

p. 12

Subsequently during the same term, the plaintiff on notice moved that the default be opened and cause restored to the calendar.

Mr. Southwor th, for the defendant,

objected preliminarily, and showed by affidavit that the order appealed from was granted with $10 costs ; that the order had been served several months ago; that the costs had not been paid ; that plaintiff gave no security on the appeal, nor procured an order staying the collection of the costs ; and insisted that, although plaintiff might appeal from such order without payment, yet his appeal being regularly dismissed, his proceeding to reinstate' the appeal were stayed by virtue of section 779 of the new Code.

after consultation," announced its decision.—The Code, section 779, reads as follows : “ Where costs of a motion, directed by an order to be paid, are not paid within the time fixed by the order for that purpose, or if no time is so fixed, within ten days after service of a copy of the order, all proceedings on the part of the party required to pay them, are stayed without further direction of the court, until the payment thereof.”

In the opinion of the court, the legislature did not intend to stay the appellant’s proceedings on appeal from such order, nor any proceedings necessary for the due and orderly bringing such appeal to argument, including, of course, the reinstatement of the appeal after it had been dismissed.

The preliminary objection is overruled, and the appeal is restored to the calendar.