Majority
p. 877Abraham Newkirk, Resp’t, v. Walter H. Hooker et al., App’lts. N. Y. C. C., January 12, 1895.
William B. Dowd, for app’lts; Abram Kling, for resp’t.
Under § 779 of the Code of Civil Procedure, all proceedings on defendants’ part were stayed until the costs provided for by the order of October 30, 1894, were paid. That plaintiff did not waive such stay is evident by the notice served by his attorney on November 13, 1894. His subsequent appearance to oppose a motion made by defendants’ attorney I think cannot be construed as a waiver, in view of the notice above referred to. He did not
p. 878
comply with said order by paying said costs until November 27th, and then for the first time had a right to appeal from the order of November 13th. It was then too late for them to appeal, more than ten days having elapsed, and their notice of appeal was properly returned The order appealed from must therefore be affirmed, with costs.