
    Cohu v. Husson.
    
      (Superior Court of New York City, General Term.
    
    June 28, 1889.)
    Costs—Faildbe to Pay—Appeal.
    Under Code Civil Proc. N. Y. § 779, as amended by Laws 1884, c. 181, providing that “where costs'of a motion, or any other sum of money directed by the court to be paid, are not paid, all proceedings on the part of the party required to pay them * * * are stayed, ” it is error to require the defendant to accept service of a notice of appeal, where plaintiff has failed to pay the costs of an order.
    Appeal from special term.
    The plaintiff, Aaron B. Cohu, gave notice of an appeal to the defendant, Joseph Husson. This notice defendant refused to accept, on the ground that further proceedings on the part of plaintiff were stayed for failure to pay certain costs which he had been ordered to pay. Thereupon the court made an order compelling defendant to accept the notice, and from this order defendant appealed. For report of former appeal, see 5 N. Y. Supp. 7.
    Argued before Sedgwick, C. J., and Freedman, J.
    
      Edward P. Wilder, for appellant. Abram Kling, for respondent.
   Freedman, J.

This is an appeal from an order made at special term compelling defendant’s attorney to accept a notice of appeal from the judgment in this action, which notice had been previously served by plaintiff, and returned by defendant’s attorney on the ground that plaintiff’s proceedings were stayed for non-payment of costs of an order, under section 779, Code Civil Proc. The order awarding such costs was a general term order, which reversed an order made at special term, with $10 costs and disbursements of the appeal, and granted defendant’s motion below, with $10 costs. There is no, claim that the stay, if it existed, has been waived by the defendant. The court below made the order appealed from in deference to the authority of Verplanck v. Kendall, 47 N. Y. Super. Ct. 513. That case was decided in 1880, and at that time section 779 of the Code read as follows: “Where costs of a motion, directed by an order to be paid, are not paid, ” etc. It was upon this language that it was held by this court that costs of a motion did not include costs of an appeal from an order. In Phipps v. Carman, 26 Hun, 518, decided in 1882, the general term of the supreme court of the second department reached a different conclusion. The conflict between the two decisions was settled by the passage of chapter 181, Laws 1884, by which section 779 was amended so as to read as follows: “ Where costs of a motion, or any other sum of money directed by an order to be paid, are not paid,” etc. Under the section, as thus amended, non-payment of any sum of money directed by an order to be paid, is made by law a ground for staying further proceedings in the action on the part of the party thus in default, and the section applies to all orders, irrespective of the question whether they have been made at special or general term. From this it follows that the order appealed from was erroneously made. The order must be reversed, with $10 costs and disbursements to be taxed; such reversal, however, to be without prejudice to the op-. peal from the judgment heard during this term, provided the plaintiff, within 20 days, pay the said costs and disbursements,-and the costs as taxed under the former general term order.  