Verplanck v. Kendall — 47 N.Y. Super. Ct. 513

Majority

p. 513

WILLIAM S. VERPLANCK, Receiver, &c., Respondent, v. MARCUS KENDALL, Appellant.

Before Sedgwick, Ch. J., and Speir, J.

Decided December 20, 1880.

Headnote

Stay of proceedings for non-payment motion costs—costs of appeal not motion costs—waiver.—Code Civil Procedure, §§ 768, 779, 3,239.

Appeal from an order entered at special term, denying a motion to stay plaintiff’s proceedings on the trial, or to adjudge plaintiff’s proceedings stayed, under section 779 of the Code of Civil Procedure, until the payment by plaintiff of costs on an appeal theretofore awarded defendant by the general term, on the reversal of an order of compulsory reference of the action.

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

Concurrence

p. 514

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.”

I concur, on the ground that,, within the meaning of section 779, ‘ costs of a motion,’ are not costs of an appeal from an order.”

Alvin Burt, for appellant.

W. W. Badger, for respondent.

Order affirmed, with costs.