
    John Muller, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    July 29, 1910.
    Costs — stay — failure to pay costs — section 7.79, Code Civil Procedure, construed — subsequent motion for leave to sue as poor person — failure to show that time for payment of costs has expired.
    Costs awarded upon an appeal from an order made at Special Term denying a motion for a new trial upon a case and exceptions are within the provisions of section 779 of the Code of Civil Procedure.
    The stay for failure to pay costs created by said section also applies where there is a failure to pay costs on an appeal from an order made upon the minutes at the Trial Term.
    Where a stay of proceedings is granted by order of the court.it may, for proper cause, set aside the Order and. vacate the stay. But it has no such power when the stay becomes operative by virtue of the statute (Code Civ. Proc. § 779), independent of any order of the court.
    Hence, where the plaintiff’s proceedings have1 been stayed by virtue of the statute because of his failure to pay costs, the court has no power to grant a subsequent motion for leave to sue as a poor person while such stay is operative. But where the papers on a motion for leave to sue as a. -poor person do not show that the time within which the costs were to be paid has expired, or that the ten days following service. of the order have expired, so that the-stay is in force, the court may grant the subsequent motion.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of tihe county of Kings on the 24th day of May, 1910, granting plaintiff leave to continue, the action as ' a poor person and vacating a stay theretofore granted to the defendant. ■
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Charles J. Belfer, for the respondent.
   Burr, J.:

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

when a stay becomes operative by virtue of a statutory provision, independent of any order of the court, the court has no moré power to disregard that stay, or to make-an order which in effect sets the same aside, then it would have to nullify any other statutory provision. The difficulty with defendant’s position is that it does not appear from the motion papers that the stay to which it may be entitled had become operative when the motion was made. It does not appear that the order which awarded the costs fixed any time within which they should be paid. Neither does it appear that ten days have expired since a copy of the said order was served. There is no proof that it has ever been served. The court at Special Term was, therefore, at liberty to proceed with the motion, and as the necessary jurisdictional facts entitling plaintiff to sue as a poor person were stated without contradiction, if plaintiff was not entitled to the order as matter of right (Shapiro v. Burns, 31 Abb. N. C. 144), at least we cannot say that the discretion of said, court was unwisely exercised. It may be that upon service of a copy of the order and the expiration of the ten days specified in the statute, plaintiff will be unable to proceed with the trial of the action until such costs are paid. Or it may be that the court would be justified in staying the trial of the action, notwithstanding the granting of the order here appealed from until the payment of such costs. Muratore v. Pirkl, 109 App. Div. 146.) We are not called upon to decide these questions, and we express no opinion thereon. We only decide that so far as appears from this record, the court was at liberty to proceed with the hearing of the motion resulting in the order appealed from.

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.'  