
    Catharine McIntyre, App’lt, v. The German Savings Bank, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. "Costs—Appeal.
    Where an order denying a motion for a new trial is affirmed on appeal, the respondent is entitled, as a matter of course, to the costs of the appeal, and, if the same are not paid within the time specified in § 779 of the Code, may collect the same by execution.
    2. Appeal—-Waiver.
    Where a motion to compel plaintiff to enter final judgment and to stay the collection of costs of appeal until such entry, is granted as to the stay, but denied as to the judgment, the plaintiff, by allowing the portion of the order in her favor to stand, does not waive her right to appeal from the portion directing a stay.
    Appeal from order staying the collection of costs granted to-the plaintiff by the order of the general term of this court, affirming an order of the special term denying a motion for a new trial on a case and exceptions, until the entry of final judgment and vacating execution issued for their collection.
    
      Arthur H. Smith, for app’lt; Lewis Sanders, for resp’t.
   Van Brunt, P. J.

Section 3239 of the Code provides that upon an appeal from an interlocutory judgment or order in an action costs are in the discretion of the court, and may be awarded absolutely or to abide the event, except as follows : When the appeal is taken from an order granting or refusing a new trial,, and the decision upon the appeal refuses a new trial, the respondent is entitled of course to the costs of the appeal.

In the case at bar the appeal was from an order of the special term denying a motion for a new trial on a case and exceptions, and such order was affirmed, and in pursuance of the section of the Code which has been cited the respondent was entitled as matter of course to the costs of the appeal. They were not in the discretion of the court The court had no power to make these costs abide the final event of the action, but the respondent upon the affirmance of such an order had an absolute right to these costs and they were awarded by the order of the general term entered upon the affirmance of the order of the special term. This brings the case clearly within the provisions of § 779 of the Code: where the costs of a motion or any other sum of money directed by an order to be paid are not paid within the times therein specified an execution against the personal property of the person required to pay the same may be' issued to any person to whom said costs or sum-of money is made payable by said order.

If it be said that the costs of an appeal from an order are not motion costs, it may be sufficient to answer that they clearly are such within the contemplation of the Code, because there is no other provision made for their collection.

It may be argued that they may be included in the final judgment, but occasions may arise where such costs are incurred after the entry, of a final judgment, as § 1005 provides that a motion for a new trial may be made after final judgment.

It is clear that in the contemplation of the Code an appeal from an order denying a motion is nothing but a continuation of the motion ; and whatever costs may be incurred in the continuation of the motion are the costs of the motion and have no relation whatever to the general costs of the action. We think, therefore, that the plaintiff had the right to collect these costs, she being by the provisions of the Code absolutely entitled to the same.

As to the claim that the plaintiff by appealing from so much of the order as restrained her from collecting the costs, leaving standing in her favor that part of the order denying the motion to compel her to enter judgment, thereby waived her right to appeal, we fail to see the force of the suggestion.

A party moved against is successful in defeating a part of the relief asked upon such motion; and because of such success it is claimed she is deprived of the right to appeal from so much of the order as grants relief against her.

This is certainly a novel proposition that a party must be entirely defeated in order that she may have a right to appeal; and that where the success of the moving party is only partial no right of appeal exists. .

The order should be reversed and the motion denied, with ten dollars costs and disbursements.

Daniels and Brady, JJ., concur.  