
    SUPREME COURT.
    Hiram C. Pettibone, as receiver, &c., appellant, agt. William E. Drakeford, respondent.
    
      Code of Givil Procedure, section 779 — Stay of proceedings for nonpayment of costs — When begins.
    
    The stay of proceedings for the non-payment of costs, provided for in section 779 of the Code of Civil Procedure, does not operate to stay proceedings until default in payment; and such default does not exist until the expiration of ten days from the service of the order, or the time fixed in the order.
    
      Fifth Department, General Term, October, 1884.
    
      Before Barker, P. J., Bradley, Haight and Lewis, JJ..
    
    Motion to dismiss appeal upon the ground that appellant’s proceedings were stayed at the time this notice of appeal was served on respondent’s attorney.
    Appeal from order granting a new trial, granted May 3, 1884. Upon a motion by appellant to resettle this order on the 2d day of June, 1884, Mr. justice Macomber denied the motion for resettlement and- directed plaintiff to pay defendant ten dollars costs of this motion.
    A copy of the latter order was served on plaintiff’s attorneys on the 5th day of June, 1884. On the 7th day of June, 1884, plaintiff’s attorneys served notice of appeal from the order granting a new trial upon defendant’s attorney, who declined to receive it, upon the grounds that the said motion costs were not paid
    
      A. Hadden, Esq., of counsel (Wm. E. Bonham, defendant’s attorney), for motion,
    claimed that under section 779 Code of Civil Procedure, plaintiff’s proceedings were stayed for non-payment of motion costs instantaneously from the service of the order directing payment, and cited Hazard agt. 
      Wilson (3 Abb. N. C., 53); Brown agt. Griswold (23 Hun, 620); Phipps agt. Carman (26 Hun, 518).
    
      De Merville Page, of counsel (Beard & Griffin, plaintiff’s attorneys), opposed,
    cited Marks agt. King (13 Abb. N. C., 374.)
   The Court

Held,“ that the stay of proceedings for the nonpayment of costs provided for in the order, under section 779 of the Code of Civil Procedure, does not operate to stay proceedings until default in payment; and that such default does not exist until the expiration of ten days from the service of the order, or the time fixed in the order (Marks agt. King, 13 Abb. N. C., 374, approved).  