
    MARKS v. KING.
    N. Y. Supreme Court, Albany Special Term,
    January, 1884.
    Motions and Orders ; County judge’s extension of time to answer,—Stay of Proceedings ; Non-payment of costs.
    The rule that a county judge may ex parte vacate his own ex parte order extending time to answer, and such vacatur cannot be reviewed at special term,—applied.
    
      It seems, that the stay of proceedings declared by Code Civ. Pro. § 779, begins only from the default of the party in not paying the costs and that if no time is specified in the order, the default does not exist until ten days after service of a copy of the order, or if the service is by mail, until twenty days thereafter.
    Seward v. Wilson, 3 Abb. Pr. N. S. 50,—disapproved.
    Whether a stay of proceedings prevents the obtaining of further time to answer, query ?
    
    • Motion to vacate order of county judge setting aside extension of time to answer and for leave to come in and defend.
    In this action by David Marks against Morris King, a motion was made on the part of the defendant to vacate an attachment granted therein, which was denied with $10 costs, and the order denying such motion served on the plaintiff’s attorney by .mail on January 3, 1884. On January 8, the defendant applied to the county judge of Fulton county and obtained an order, ex parte, granting the defendant twenty days additional time in which to answer.
    The costs of the motion vacating the attachment not having been paid, the plaintiff’s attorney applied to the county judge of Fulton county, January 8, ex parte, to vacate the extension, on the ground that the costs of motion were payable immediately, and that all proceedings on the part of the defendant were stayed until such costs were paid.
    
      Subsequently the plaintiff having entered judgment in the case, the defendant made this motion at the special term.
    
      Henry A. Merritt, for motion.
    
      Marie Cohen, opposed.
   Learned, P. J.

It is admitted that the county judge could, ex parte, vacate the extension of time-which he had granted (Code Civ. Pro. § 772), and there fore, it is not very material, on the present motion, what were his reasons. I cannot review the order which he made.

But as the matter has been discussed and as the reason is plainly given, both in the affidavit, and in the order of the county judge, why the former order was vacated, I may briefly state my views. It seems to me very plain, from the language of § 779, that the stay of proceedings thereby declared begins only from the default of the party in not paying the costs. If no .time is specified in the order, then this default does not exist until ten days after service of a copy of the order. To construe the section to mean that a party’s proceedings are instantly stayed from the very granting, or the very service of the order, would give him no time to comply with its requirements, and would be most unreasonable. The language of the section is plain, viz., that when the costs are not paid .... within ten days after the service, etc.....all proceedings etc., are stayed.” The proceedings are not stayed, therefore, until the ten days have expired. Of course, under § 798, if the service is by mail, double the time is allowed.

Three decisions are cited by the plaintiff—Thaule v. Frost (1 Abb. N. C. 298); Lyons v. Murat (54 How. Pr. 23); Hazard v. Wilson (3 Abb. N. C. 50). The last only, applies. That was a decision in 1877 of the special term N. Y. common pleas. I think it incorrect and should refuse to follow it. The learned judge who decided it, seems not to have considered the question now presented.

And in passing I may say that I am not certain that a stay of proceedings prevents the obtaining of further time to answer.

The plaintiffs, however, were regular in entering their judgment, because the county judge, as has been said, could vacate his order extending the time, and did so. Hence the defendant can only ask to come in as a matter of favor. As he swears to merits, and as he has paid the $10 costs, it is reasonable that he should be allowed to come in on the usual terms. He must pay $10 costs of motion and $15 costs of judgment and clerk’s fee, and upon such payment the default may be opened and the defendant allowed to answer, the. costs to be paid and the answer served, on or before March 8th. If not so paid, then the plaintiffs to have $10 costs of this motion.  