
    Burr Mattice, Respondent, v. Charles F. Shelland, as Trustee and Individually, Respondent, Impleaded with Rosephe Wilson, Appellant, and Others, Defendants.
    
      Non-payment of motion costs—stay resulting therefrom — waived by a notice of. trial.
    
    Section 779 of the Code of Civil Procedure, which provides that, where motion costs are not paid, all proceedings are stayed without further direction of the court, is not intended to prevent a party stayed thereunder from asserting his natural legal right of self-defense, but to prevent him from making an onward movement in the action.
    The service by a plaintiff of a notice of trial, while the proceedings of the defendant are stayed by virtue of the provisions of section 779 of the Code of Civil Procedure, operates to waive the stay, at least to the extent of allowing the defendant to take part in the trial.
    Appeal by the defendant, Bosephe Wilson, from an order of the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the county of Otsego on the 3d day of June, 1902, directing that all proceedings on the part of said defendant be stayed until the payment of twenty dollars costs of a former motion and ten dollars costs of the motion upon which the order was made, and that the answer of said defendant be stricken out in the event of such motion costs not being paid within three days, and also from an order made at the Otsego Special Term and entered in said clerk’s office on the 10th day of June, 1902, staying all proceedings in the action on the part of said defendant, and striking out her answer in the action.
    
      A. R. Gibbs and Thomas H. Hagerty, for the appellant.
    
      Douglas W. Miller and S. L. Huntington, for the respondents.
   Chase, J.:

This action is brought to foreclose a mortgage owned by the plaintiff on certain real property described in the complaint, and also to foreclose several other mortgages on the same property owned by parties defendant. Two answers were interposed, one by defendant Lucelia Lewis, and one by said defendant Bosephe Wilson, each claiming a dower interest in the mortgaged- property, or some part thereof, antedating said mortgages. Said answering defendants made a motion for the appointment of a receiver of the mortgaged property.

On the 3d day of March, 1902, said motion was denied, and an order was entered denying the motion, with ten dollars costs to the plaintiff and ten dollars costs to the defendant Charles F. Shelland, trustee.

Said Lucelia Lewis has since died, and her alleged dower interest is extinguished. On the 16th day of May, 1902, plaintiff’s attorney duly served a notice of trial on the attorney for said defendant Wilson, which notice of trial stated that the matters at issue would be moved for trial at the Trial and Special Term to be held on the 2d day of June, 1902. Thereafter the attorney for said defendant Wilson duly served notice of trial on plaintiff’s attorney, but the same was returned with a notice stating that all proceedings on the part of said defendant Wilson were stayed.

At said Trial and Special. Term the orders appealed from were made. It does not appear what other or further proceedings, if any, were had or attempted.

Section 779 of the Code of Civil Procedure provides that, where motion costs are not paid, all proceedings are stayed without further direction of the court. The stay may be waived. The section is not intended to prevent a party moved against from asserting his natural legal right of self-defense (Randell v. Abrisqueta, 20 Abb. N. C. 292), but prevents an onward movement in the action. (Bigler v. Nat. Bank of Newburgh, 26 Hun, 520.)

Plaintiff, by noticing the case for trial, at least waived the stay to the extent of allowing the defendant to take part in the trial. (Eisenlord v. Clum, 52 Hun, 461; Verplanck v. Kendall, 47 N. Y. Super. Ct. 513.)

It is unnecessary on this appeal to determine whether plaintiff’s serving a notice of trial wholly waived the statutory stay or, if the stay was only partially waived thereby, to define the extent of the waiver or to state whether it included the right to serve a counter notice of trial.

The orders appealed from, staying all proceedings on the part of the defendant Wilson, were too broad.

The record does not disclose a case where the court should have stricken ont the defendant’s answer, (Hewett v. Cook, 75 App. Div. 239.)

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

All concurred.; Smith, J., in result.-

Order reversed, with ten dollars costs and disbursements.  