Newkirk v. Hooker

11 Misc. 719 | City of New York Municipal Court | 1895

Fitzsimons, J.

Under section 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. They did not comply with said- order by paying said costs until November twenty-seventh, and then for the first time had a right to appeal from thé order of November thirteenth. 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.

Ehrlich, Ch J., and Conlan, J., concur.

Order affirmed, with costs.