
    Wilson H. Gardenier, Pl’ff by substitution, v. Hiram Eldred, Def't.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed October 3, 1891.)
    
    1. Appeal—Stay—Non-payment oe costs.
    A motion, to set aside a judgment dismissing the complaint was denied, with costs to defendant. About two years later the plaintiff herein was substituted and appealed from the judgment. Held, that as the costs had not been paid the proceedings of the plaintiff were stayed, and that he had no right to serve the notice of appeal.
    3. Same.
    The notice of appeal and proposed case and exceptions were returned by defendant’s attorney on the ground that plaintiff was under a stay by reason of non-payment of costs, and he obtained an order vacating service of the case and exceptions on that ground. Held, that the appeal from such order would not be dismissed.
    Motion by defendant to vacate and set aside the service of the notice of appeal from the judgment in this case and dismiss the appeal; also to vacate and set aside the service of the notice of appeal from the order entered June 4, 1891, and to dismiss the appeal, upon the ground that at the time of the service of such notices of appeal all proceedings on the part of plaintiff were stayed by the non-payment of motion costs awarded to defendant by an order made August 81, 1889.
    
      D. P. Morehouse, for deft; W. H. Gardenier, for pl’ff.
   Merwin, J.

This action was commenced in February, 1889, in the name of Jjovinia Downs as plaintiff by Mr. Gardenier, the present plaintiff, as her attorney. Issue was joined in the action and a trial was had, and on the 31st July, 1889, a judgment was entered dismissing the complaint, with caste. Thereafter at special term the plaintiff in the action made a motion to set aside the taxation of costs and the judgment. This motion was denied, with ten dollars costs to the defendant and an order to that effect, dated August 31,1889, was duly entered September 3, 1889, and on the same day. duly served on the plaintiff’s attorney. Prior to the 14th February, 1891, Mr. Gardenier, the attorney, became the owner of the cause of action and at the date named he obtained at special term an order substituting him as plaintiff in the action. This order was duly entered and served on defendant’s attorney.

On the 13th May, 1891, Gardenier, as plaintiff by substitution, served on defendant’s attorney a notice of appeal from the judgment, and on the 14th May, 1891, a proposed case and exceptions. Both of these were returned by the defendant’s attorney to the plaintiff on the ground that the plaintiff was under a stay by reason of the non-payment of the costs ¿warded by the order of August 31, 1889.

On the 2d June, 1891, the defendant moved at special term for an order vacating the service of the case and exceptions on the ground stated. This motion was granted/ the order being entered June 4, 1891, and on the 9tli July the plaintiff appealed from this order to the general term. The costs awarded by the order of August 31, 1889, have,never been paid. It appears that the time to appeal from the judgment has not been limited as provided by § 1341 of the Code.

The plaintiff was in no better position as to the stay than his assignor. Mac Whinnie v. Cameron, 11 N. Y. Supp., 20; 32 N. Y. State Rep., 985. In that case, judgment had been rendered against the defendant and supplementary proceedings instituted, but no property discovered. On the death of the judgment cred-tor supplementary proceedings were again instituted and dismissed, with costs to the defendant. The executrix then assigned the judgment, and the assignee issued execution against certain real estate of defendant. It was held that § 779 of the Code applied, and that the assignee was compelled to pay the costs awarded to defendant as a condition precedent to issuing the subsequent execution. In Murray v. Cameron, 15 N. Y. Supp., 13; 38 N. Y. State Rep., 792, which was an action upon the same judgment by a subsequent assignee, the same rule was applied and the stay held to be effectual against the action brought by the second assignee.

The provision of § 779 is that “ all proceedings on the part of the party required to pay them, except to review or vacate the order, are stayed, without further direction of the court, until the payment thereof.”

We think that the plaintiff when he served the notice of appeal from the j udgment was bound by the stay and had no right to serve the notice. For that reason the service should be set aside and the appeal dismissed.

The order appealed from enforced the same rule as to the service of the case and exceptions. The propriety of such enforcement is involved in the appeal from the order. In such appeal the act of the defendant, since the stay order was made, is sought to be reviewed. We think the plaintiff should have opportunity to defend himself against such act.

Motion to vacate the service of the notice of the appeal from the judgment and dismiss such appeal granted.

Motion to vacate the service of the notice of appeal from the order and dismiss such appeal denied.

Hardin, P. J and Williams, J., concur.  