
    Olga Schwartz, Respondent, v. Simon Schendel, Appellant.
    (Supreme Court, Appellate Term,
    May, 1898.)
    Appeal to Appellate Term — Order opening default — Costs payable on . appeal from order.
    ■ A defendant has a right to appeal from an order of a justice of at District, or Municipal, Court of the City .of New York imposing terms upon opening his default and need only pay, as a condition of that right, the motion costs awarded by the order. He cannot be compelled to pay costs theretofore awarded against him in the action and whose payment formed a part of the conditions upon which his default was opened.
    Motion to dismiss appeal,
    Abraham B. Schleimer, for motion.
    Benno Loewy, opposed.
   Per Curiam.

This is a motion, to dismiss an appeal taken, from an order made by the 'justice below opening the defendant’s de>fault. The order in question was made upon certain conditions, among others that the defendant pay to the plaintiff’s attorney the. sum of.$17.50, the amount of costs awarded by the judgment which was opened; the sum of $16.25, the amount actually disbursed by the plaintiff in procuring the attendance Of her witnesses upon several dates when the cause had appeared upon the calendar of the coiirt for trial; and also that he should pay to the attorney for the plaintiff the sum of $10 costs of the motion. The order is appealed from by the defendant for the purpose of obtaining a review of the right of the justice to impose the conditions upon which the default was opened.

The plaintiff contends that the defendant has not perfected his appeal because of his failure to pay the $17.50 and the $16.25, the payment of which' formed part of the conditions specified in the order appealed from, and relies upon section 3047 of the Code of Civil Procedure, which requires the payment, at the time of serving his notice of appeal,, by an appellant, to the person to whom it is • delivered, of the costs of the action included in the judgment and the sum 'of $.2 as the fee of the justice for making the return.

Chapter 748 of the Laws of 1896 sanctions an appeal from stick an order, and declares that it “ shall lie as from a judgment in said court.” It has been held that such an appeal is subject to the provisions of section 3047 of the Code of Civil Procedure. Szerlip v. Bair, 20 Misc. Rep. 588. This, of course, means so far as in the nature of things that section may be applied. We are ,of the opinion that, as applied to such an order, the section must be construed as meaning the costs awarded upon the motion and included in the order, and that it certainly does not require, as contended in this casej the. payment of the costs which had been theretofore awarded in the action, the payment of which formed part of the conditions upon which the relief sought for was granted. The Only costs that were awarded by the order were the motion costs, and these are the only costs which the defendant was called upon to pay in order to perfect 'his appeal.

Motion denied, with $10 costs.

Present: Beekmak, P. J\, Cildebsleevb and Ciege'bioh, JJ.

Motion denied, with $10 costs.  