
    David McKown, Plaintiff, v. Leopold Oppenheimer, Respondent.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Costs — Payment and enforcement thereof — Staying further proceedings on action till costs paid — Staying second action till <¡osts of former paid — In Municipal Court of the city of New York.
    The Municipal Court of the city of New York has no inherent power to stay proceedings for nonpayment of costs; hut an order of that court staying all proceedings upon the part of a plaintiff to an action brought therein until payment of a judgment for costs entered against him in a prior action in said court in favor of defendant, though unauthorized, is not appealable.
    The remedy in such case is by motion in said court to vacate its order and have the case set down for a hearing, and, in ease of a denial of such motion, to apply for a mandamus.
    Appeal by the plaintiff from an order of the Municipal Court of the city of New York, second district, borough of ! The Bronx.
    
      J. Wilson Bryant, for appellant.
    Huth & Baker, for respondent.
   Gildersleeve, J.

The plaintiff appeals from an order made in the Municipal Court staying all proceedings in said court on the part of the plaintiff until payment of a judgment for costs entered against him in a prior action in the Municipal Court in favor of the defendant. This order is not an appealable one. “ Under the present law the only orders appealable are those enumerated in secs. 253, 254, 255, 256 and 257 of the Municipal Court Act.” Leavitt v. Katzoff, 43 Misc. Rep. 26; Maas v. Nankeville, 49 id. 637; Bonagur v. Orlandi, 51 id, 663. For the future guidance of the lower court in such cases we may say, however, that the power to grant such a stay is not vested in the Municipal Court. A Municipal Court has no inherent power to stay proceedings for nonpayment of costs; and the respondent herein admits that there is no section in the Code of Civil Procedure which confers upon a court of record the power to stay proceedings in a second action for failure to pay the costs imposed in a former action. The decision in Flewelling v. Brandon, 4 Daly, 333, and Lewis v. Davis, 8 id. 185, were rendered prior to the passage of the present Municipal Court Act. At that time there was no express statutory limitation upon the district courts as to granting stays; and the Court of Common Pleas in 4 Daly, supra, held that, as the statute regarding district courts provided that the rules and regulations of the Supreme Court, so far as the same can be made applicable, should apply to the district courts, therefore, a stay under the circumstances could be granted. A similar provision is contained in section 20 of the Municipal Court Act; hut the power regarding stays which is given the Municipal Court is now expressly set forth in section 1, subdivision 15, which provides that the Municipal Court may grant or vacate a stay of execution “or of proceedings within the limitations of this act. But such stay shall not exceed five days.” So that, whatever power the district courts had regarding stay's is not now given the Municipal Court, but its powers are hounded by the limitations of this actand all stays are limited in point of time to five days. It is clear, therefore, that the Legislature invested the Municipal Court with no other power regarding stays than that which is expressly given in the act itself, and we know of no provision in the act that gives authority for a stay under the facts shown in this case. The Municipal Court has been called the “ Poor Man’s Court,” and the Legislature evidently had that in-mind, as there seems to be no good reason why a plaintiff should be deprived of collecting a just claim from his debtor because of his inability "to pay the costs of a former action which, possibly, was dismissed through no fault of his, especially as his adversary can offset the amount of such costs against the -plaintiff’s claim.

An application should be made to the lower court to vacate the order and to have the ease set down for hearing, which undoubtedly would be granted. Otherwise mandamus would lie.

MacLean and Seabury, JJ., concur.

Appeal dismissed, without costs.  