
    First Department,
    January, 1917.
    British-American Tobacco Company, Ltd., Respondent, v. United States Fidelity and Guaranty Company, Appellant.
    
      Appeal—serving of driefs.
    
    Motion to vacate an order of this court, entered on the 22d of December, 1916, dismissing respondent’s motion for an order dismissing the appeal from the interlocutory judgment herein.
   Per Curiam:

The motion was dismissed upon the ground, as appeared from the papers submitted in opposition by the appellant, of non-payment by the respondent of ten dollars costs imposed by a prior order of this court denying a former motion to dismiss. It appears that on the afternoon of the fourteenth of December, the day before the motion was returnable, the respondent had sent by mail a check for the amount of said costs to the appellant’s attorney, which said attorney now claims, upon the papers submitted herein, was not received until after the submission of the motion. It was his duty to have informed this court promptly of the receipt of said check, and especially in view of our memorandum, in which we stated that the motion was dismissed for non-payment of said motion costs. (See 173 App. Div. 984.) The motion to vacate said order of dismissal will, therefore, be granted, with ten dollars costs. It appears, however, that the brief, for failure to serve which the motion was made, has now been printed. Therefore, under the prayer for such further relief as the court may deem just and proper, contained in the moving papers herein, the motion to dismiss the original appeal will be granted unless said brief be promptly served, the case ready for argument by February sixth, and upon the payment of an additional ten dollars costs by appellant. Present—Clarke, P. J., Laughlin, Scott, Dowling and Smith, JJ. Motion to vacate order of dismissal granted, with ten dollars costs. Motion'to dismiss original appeal granted, unless appellant complies with the terms stated in memorandum. Order to be settled on notice.  