Cohu v. Husson — 57 N.Y. Super. Ct. 222

Majority

p. 222

AARON B. COHU, as Executor, etc., Respondent v. JOSEPH HUSSON, Appellant.

Headnote

Stay of proceedings, non-payment of costs awarded by a general term order made on an appeal from an order operates as,—Reversal without prejudice.

Under § 779 of the Code of Civil Procedure as amended by chapter 181 of the Laws of 1884, the non-payment of costs (within the time limited by that section) awarded by a general term order, made on an appeal from an order below, works a stay of all proceedings on the part of the party against whom the costs were awarded, including the service of a notice of appeal from a judgment entered against him in the action in which the general term order is entered subsequent to the entry of that order.^[1]

Where the service of a notice of appeal from a judgment is irregular, as having been made pending a stay arising from the non-payment of costs awarded by an order, and the court below erroneously orders its acceptance, the general term (the appeal from the judgment having already been heard^[2] ) may reverse the order below without prejudice to the appeal from the judgment upon terms.

Before Sedgwick, Ch. J., and Freedman J. '

Decided June 28, 1889.

Appeal from an order.

The issues in this case were tried before the court

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and a jury November 7,1888, and a verdict rendered in favor of the defendant.

The clerk of the court- having refused to tax costs in favor of defendant against plaintiff, and the court at special term having made an order sustaining the clerk, defendant thereafter, and prior to February, 1889, appealed to the general term, where an order was made dated February 10, 1889, reversing the order below, with $10 costs and disbursements of the appeal, and directing the clerk to tax the costs of the defendant in the action and to insert the same in the judgment to be entered in defendant’s favor on the verdict. This order was entered March 8, 1889. The costs in the action having been taxed, judgment was, on March 12, 1889, entered on said verdict in favor of defendant against plaintiff for such costs; and a copy of the judgment with a notice of its entry was that day served on plaintiff’s attorney. On the 13th of March, 1889, a copy of the aforesaid order of reversal, with a demand for payment of the costs thereby awarded, was served on plaintiff’s attorney. On the 15th day of March, 1889, the costs awarded by the aforesaid order of reversal were taxed at $47.52. On the 25th of March, 1889, defendant’s attorney served on plaintiff’s attorney a notice that the costs awarded by the aforesaid-order of reversal had been taxed at $47.52, and that defendant demanded payment thereof; also that more than ten days having elapsed since the service of said order, and said costs-not having been paid, defendant would at all times insist that all proceedings on the part of the plaintiff in the action were stayed until said costs were paid. On 'the 1st of April, 1889, defendant served a notice of appeal from the aforesaid judgment to the general term. On the next day the notice of appeal was returned, endorsed, “ Respectfully returned for the reason that all proceedings on the part of the plaint

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iff are "stayed under §-779 of the Code for non-payment of costs of order entered herein on the 8th of March, 1889.” Plaintiff then moved for an order compelling defendant to receive said notice of appeal. After hearing counsel, the court, at special term, made an order, ordering defendant’s attorney to receive and accept said notice of appeal as of the date of the service thereof on him, to wit: April 1st, 1889. From this order the present appeal is taken.

Edward P. Wilder, attorney and of counsel, for appellant.

Abram Kling, attorney and of counsel, for respondent.

This is an appeal from an order made at special term compelling defendant’s attorney ^o accept a notice of appeal from the judgment in this action, which notice had been ' previously served by plaintiff and returned by defendant’s attorney on the ground that plaintiff’s proceedings were stayed for non-payment of costs of an order under § 779 of the Code of Civil Procedure. The order awarding such costs was a general term order, which reversed an order made at special term with $10 costs and disbursements of the appeal, and granted defendant’s motion below with $10 costs. There is no claim that the stay, if it existed, has been waived by the defendant. The court below made the order appealed from in deference to the authority of Verplanck v. Kendall, 47 Super. Ct. 513. That case was decided in 1880, and at that time section 779 of the Code read as follows: ‘ Where! costs of a motion, directed by an order to be paid, are hot paid, &c., &m” It was upon this language that it was held by this court that costs of a motion

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did not include costs of an appeal from an order. In Phipps v. Carman 26 Hun, 518 , decided in 1882, the general term of the Supreme Court of the Second Department reached a different conclusion. The conflict between the two .decisions was settled by the passage of chapter 181 of the Laws of 1884, by which section 779 was amended so as to read as follows: “ Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid, &c., &c.”

Under the section, as thus amended, non-payment of any sum of money directed by an order to be paid, is made by law a ground for staying further proceedings in the action on the part of the party thus in default, and the section applies to all orders, irrespective of the question whether they have been made at special or general term. From this it follows that the order appealed from was erroneously made.

The order must be reversed, with $10 costs and disbursements to be taxed, such reversal, however, to be without prejudice to the appeal from the judgment heard during this term, provided the plaintiff, within 20 days, pay the said costs and disbursements and the costs as taxed under the former general term order.

Sedgwick, Ch. J., concurred.