
    Freida Szerlip, Appellant, v. Franz Bair, Sued as “Fair” Bair, Impleaded with Jora J. Bair and Henry Jacobs, Respondents.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. District Courts of New York — Vacating judgment — Costs payable on appeal. '
    Where a District Court of the city of New York makes an order, ' under chapter 718 of the Laws of 1896, vacating a judgment recovered against defendants by default, and the plaintiff appeals from the order, he is required by the provisions of section 3047 of the Code of Civil Procedure, to pay to the justice or his clerk not only the fee of the justice for making a return, but also the costs awarded to the defendants by the order which set aside the judgment.
    2. Same — Belief on excusable failure to pay costs.
    Where, however, the plaintiff has failed to pay these costs, the court will not dismiss his appeal, but will allow him, under section 3049 of the Code of Civil Procedure, to correct his mistake by paying the costs within ten days, and, if paid within that period, will permit his appeal to stand.
    Motion by the respondent Bair to dismiss the appeal for failure of the appellant to deposit the costs awarded in' the order setting-aside a judgment, from which order plaintiff has appealed.
    A. H. Berrick, for motion.
    Abraham B. Schleimer, opposed.
   Daly, P. J.

The plaintiff recovered a judgment in the Fifth District Court against the defendants by default, but on motion of the defendant Franz Bair, it was set aside, as against him, on the ground that he was not served with the summons. From the order setting aside the judgment, the plaintiff has appealed, and this appeal the defendant now moves to dismiss, because the sum of $30, awarded in the order for disbursements, has not been deposited with the clerk of the court.

When an appeal is taken from a judgment of the District Court, the appellant, at the time of serving his notice of appeal, is required to pay to the justice, or his clerk; the costs of the action, included in the judgment, as well as the sum of $2, the fee of the justice for making the return. § 3047, Code Civ. Pro. The practice upon appeals from orders vacating judgments in the District Court is regulated by chapter 748 of the Laws of 1896, providing that “ from the order an appeal will lie as from a judgment in said court.” By this provision the procedure on appeal from orders must conform to the procedure on appeal from judgments, so far as the latter may be appropriate. When an award of costs is included in the judgment appealed from, such costs must be deposited by the appellant;‘and so, when an award of costs is included in an order appealed from, a like deposit must be made.

Ho reason is apparent why the same considerations which led to the requirement of the payment of costs included in the judgment sought to be appealed from, do not apply with equal force to the', costs awarded in an order. ■ By requiring the deposit in the latter case, we conform the practice on appeals from orders as closely as possible to that on appeals from judgments, and this seems to be the intent of the legislature.

It does not, however, follow that, for the omission to make, this deposit, the appeal must be dismissed. It is discretionary with the appellate court, where the appellant has seasonably and in good faith served his notice of appeal, but omitted’ through mistake to do any other act necessary to perfect the appeal, to permit the omission to be supplied. Code, § 3049. As the question in this case is novel and the practice unsettled, it is proper to allow the appellant an opportunity to make the deposit. If he does so within ten days, the motion to dismiss the appeal will be denied, without costs.' If he fails to do so within the time allotted, the motion will be granted, with $10 costs.

Motion granted, with $10 costs, unless appellant, within ten days, deposits with the justice, or clerk, of the Fifth District Court $30, the amount of costs awarded in the order appealed from. If such deposit be made, the motion to dismiss the appeal denied, without costs.

McAdam and Bischoee, JJ., concur. .

Motion granted, with $10 costs, unless appellant, within ten days, deposits with the justice, or clerk, of the Fifth District Court, $30, the amount of costs awarded. In which event motion denied, without costs.  