124 N.Y.S. 491 | N.Y. App. Div. | 1910
On the 22d day of June, 1909, plaintiff recovered a verdict in this action, which verdict was afterwards set aside and a new trial granted, by an order of the learned trial justice before whom such trial was had. From that order an appeal was taken to this court, and on the 31st day of March, 1910, the- order was affirmed, with costs .(137 App. Div. 904), which were subsequently taxed at the sum of $101.
“Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within ten days after the service of a copy of the ordér, * * * all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed without further direction of the court, until the payment thereof.” (Code Civ. Proc. § 779.) Costs awarded upon an appeal from an order made at Special Term are within the terms of said section. ( Wasserman v. Benjamin, 91 App. Div. 547; Hunt v. Sullivan, 79 id. 119 ; Phipps v. Carman, 26 Hun, 518.) Costs on an appeal from an order at Special Term denying a motion for a new trial made upon a case and exceptions, are also within the provisions of the said section (McIntyre v. German Savings Bank, 59 Hun, 536), and for the reasons there stated the same rule should apply to costs on an appeal from an order made-upon the minutes at the Trial Term. If at the time when plaintiff made his motion for leave to sue as a poor person, from which order this appeal is taken, such 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. If a stay of proceedings is granted by an order of the court, the same court, for proper cause shown, may set- aside such order and vacate the stay. But
The said order should be affirmed, with ten dollars costs and disbursements.
Hirsohberg, P. J., Woodward, Jenks and Thomas, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.'