
    Freeland & Hoffman vs. Seely.
    Where a party intends to appeal from the decision of a circuit judge granting or refusing a new trial, an order to stay proceedings must be obtained within eight days after the malting and signing the decision.
    
    
      c. Stevens, for the plaintiffs,
    -moved to set aside an order of a circuit judge staying proceedings with a view to the hearing of an appeal from his decision granting a new trial. The verdict was for the defendant. The decision was made 26th March last, and a copy of the order granting the new trial was served upon the defendant’s attorney the next day with a notice that a rule had been entered thereon for a new trial; which rule was subsequently set aside as irregular for being entered in vacation. On 8th May, in term time, another rule was entered for a new trial, and notice served on the defendant’s attorney in the course of the same day. On the 13th, the judge made the order of stay, which was, on the same day, served on the attorney for the plaintiffs. The motion was made on the ground that more than eight days had elapsed between the day of the decision, (26th March,) and the day of the order, within the meaning of the 81st rule of this court.
    
      M. T. Reynolds, contra,
    insisted that the eight days ran from the time of filing the decision and entering the rule for a new trial, and not from the day when the judge made and signed his decision. He said, if this were not so, he held an affidavit excusing the delay •; on which be asked a stay with a view to a hearing of the cause upon the calendar.
   By the Court,

Cowen, J.

The order of the judge may be taken as of itself evidence of probable cause. The delay of the defendant is excused, and the only question is, therefore, one of costs. The 81st rule limits the right of appeal to eight days from notice of the decision. That means the signing of the decision by the circuit judge ; not the filing of it. The appeal may stand on payment of costs by the defendant.

Rule accordingly.  