
    Eisenlord v. Clum et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    May 27, 1889.)
    1. Practice in Civil Cases—Stay of Proceedings—Costs.
    The costs of an appeal from an order granting a new trial are not “costs of a motion, ” or a “sum of money directed by an order to be paid,” within Code Civil Proc. ÍT. Y. § 779, and proceedings will not be stayed for failure to pay such costs.
    2. Same—Dismissal of Complaint.
    Where defendant insists that the proceedings should be stayed for failure of plaintiff to pay costs, he will not be allowed to take a dismissal of the complaint, though he had noticed the cause for trial.
    Appeal from circuit court, Montgomery county.
    Ejectment by John P. Eisenlord against David H. Glum, John L. Eisenlord, Catherine L. Eisenlord, James O. Eisenlord, Anna M. Eisenlord, Ann Lydia Eisenlord, and Alice E. Eisenlord. Plaintiff’s complaint was dismissed, and plaintiff appeals. On a former appeal by plaintiff an order granting a new trial was affirmed. 2 27. Y. Supp. 125. Code Civil Proc. 2J. Y. § 779, provides that where costs of a motion or any other sum of money directed bjr an order to be paid are not paid within the time fixed for the purpose, or, if no time is fixed, within 10 days after a service of a copy of the order, “all proceedings on the part of the party required to pay them, except to review or vacate the order, are stayed, without further direction of the court, until the payment thereof. But the adverse party may, at his election, waive the stay of proceedings. ”
    Argued before LEARNED, P. J., and Landon and Ingalls, JJ.
    
      A. J. Abbott, for appellant. D. 8. Morrel, for respondents.
   Per Curiam.

Section 779 of the Code of Civil Procedure speaks of “costs of a motion, or any other sum of money.” This language does not apply to the costs of an appeal from an order granting a new trial on the merits. The costs granted on such an appeal are not “ costs of a motion, or a sum of money directed by an order to be paid;” therefore the Code did not stay plaintiff’s proceedings in this case. Even if there had been a stay of plaintiff’s proceedings under this section, still the defendants’ practice was wrong. Under section 980 the defendants, having noticed the cause, might bring it to trial, and might take a dismissal of the complaint if the plaintiff was not ready to proceed. But here the plaintiff was ready and anxious to proceed, and the defendants insisted the plaintiff should not proceed'. Under such circumstances, it was unreasonable to permit defendants to take a dismissal of the complaint. If there had been some motion costs which remained unpaid, and the defendants had insisted on the benefit of section 779, all he should have had would have-been a mere stay of proceedings. The "defendant was blowing hot and blowing cold,—insisting under his notice of trial that plaintiff should proceed, and under the non-payment of the costs that he should not. The order is reversed, with $10 costs and printing disbursements.  