the trial of the action, was discretionary with the trial judge, and not appealable.
2. Costs—Order directing payment op costs within period stated is NUGATORY.
Held, that the portion of the order directing the payment of the costs-previously awarded, which remained unpaid, was not the original award, of costs, and the direction to pay the same, was harmless, and did not, alter or enlarge any liability on the part of the appellant to pay costs.
3. Appeal—On appeal prom order previous orders cannot be reviewed.
Held, that on an appeal from an order of this character, the appellant could not bring up for review, any separate and previous determination of the court in the action, and that when this appeal was taken, the time, to take an appeal from the previous orders had elapsed.
Appeal from an order made at the Niagara circuit, on the defendant’s motion, postponing the trial of the cause for the term. At the time the notice of appeal was served by the plaintiff, he was in default in the non-payment of costs awarded by two separate orders previously granted at special term in the sum of ten dollars each. The order appealed from contains a direction that the plaintiff pay the costs awarded to defendants in each of the said orders within thirty days from the time of the service of the order appealed from. The previous orders allowing costs, were granted and served more than thirty days prior to the service of the notice of trial by the plaintiff. In the notice of appeal, it is stated that the appellant intends to bring up-for review the two orders mentioned.
Henry M. Davis, for app’lt; Joel L. Walker, for resp’ts.
So much of the order appealed from as postponed the trial of the action, was discretionary the trial judge, and not appealable. The portion of the order directing the payment of the costs previously awarded, and which remain unpaid, was not the original award of costs and the direction to pay the same, was harmless, and did not alter or enlarge any liability on the part of the appellant to pay costs, and was unadvisably or by mistake inserted in the order. On an appeal from an order of this character the appellant cannot bring up for review, any separate and previous determination of the court in the action. The time to take an appeal from the previous order granted at special term, had expired when this appeal was taken.
The order appealed from is affirmed with ten dollars costs- and disbursements.
All concur.