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Brangaccio v. Weber Piano Co.

128 N.Y.S. 467 Court N.Y. App. Div. Decision date 1911-03-24 English

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p. 467
BRANGACCIO v. WEBER PIANO CO.
(Supreme Court, Appellate Division, Second Department.
March 24, 1911)

Headnote

1. Costs (§ 276[1] )—Payment—Stay of Proceedings.
Costs awarded on an appeal from an order made at Special Term are within Code Civ. Proc. § 779, providing that, where costs on motion are not paid within the time fixed for that purpose by an order, or, if no time be fixed, within 10 days after service of a copy of the order, all proceedings by the party required to pay the same, except to review or vacate the order, are stayed.
[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1045-1047, 1058-1080; Dec. Dig. § 276.[1] ]
2. Costs (§ 276[1] )—Stay of Proceedings—Vacating Stay.
Where a plaintiff moves for leave to sue as a poor person after further proceedings have been stayed by his failure to pay costs, as required by Code Civ. Proc. § 779, the court at Special Term has no power to entertain the motion, and its order granting such relief is unauthorized.
[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1045-1047, 1058-1000; Dec. Dig. § 276.[1] ]
Appeal from Special Term, Kings County.
Action by Vincenzo Brangaccio against Weber Piano Company. From an order of Special Term permitting plaintiff to prosecute the action as a poor person, defendant appeals.
Order reversed.
See, also, 136 App. Div. 893 , 120 N. Y. Supp. 1115 .
Argued before JENKS, P. J., and HIRSCHBERG, BURR, CARR, and THOMAS, JJ.
Eugene M. Hawkins, for appellant.
Harry S. Lucia, for respondent.

We have decided that costs awarded upon an appeal from an order made at Special Term are within the terms of section 779 of the Code of Civil Procedure. Muller v. Brooklyn Heights R. R. Co., 139 App. Div. 727 , 124 N. Y. Supp. 491 . We have also decided in the same case that if, at the time when plaintiff made his motion for leave to sue as a poor person, this statutory stay had become operative, the court at Special Term had no power to entertain the motion, its action in granting the relief was unauthorized, and the order granting such motion must be reversed. The fact that such stay had become operative in this case is admitted by plaintiff in his petition.

The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion denied.