
    Clarence O. Bigelow and Others, as and Constituting the State Board of Pharmacy, Appellants, v. John H. Drummond, Respondent.
    Fourth Department,
    November, 1905.
    Stay of proceedings on -award of costs on interlocutory judgment — default opened for failure to pay costs.
    When costs are awarded upon an interlocutory judgment deciding a question of law and an issue of fact remains undisposed of; all proceedings on the part of the parties required to pay the same are stayed, except to review of vacate the ordér or judgment,-until payment. Hence, if an order dismissing the complaint Spon default has been subsequently obtained by the party liable for the costs, the default should be opened as a matter of right.
    Appeal'by the plaintiffs, Clarence O. Bigelow and others,.'as and constituting the State Board of Pharmacy, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Jefferson on the.5th day of July, 1905, denying the plaintiffs’ motion to open' ¡default as a matter of right, ,
    
      Harold D. Alexander, for the appellants.
    
      William D. Morrow, for the respondent."
   Nash, J.:

The action was brought in the Supreme Court to recover penalties under the Public Health Law (Laws of 1893., chap. 661, art 11, as amd. by Laws of. 1900, chap. 66J).

Tssues of; law and issues, of fact were . joined in the action, An issue of -law raised by demurrer to one of the defenses set up in the answer has been decided in favor of the plaintiffs^ with posts awarded to the plaintiffs absolutely^ and taxed, leaving the issues of fact undisposed of; thereafter defendant obtained an order dismissing the complaint upon default. The plaintiffs then made the motion in which the order appealed from was made to open the default as matter of right, on the ground that, as defendant had not paid the costs of the judgment on demurrer, his proceedings were stayed, and his application fór a dismissal of the complaint Was irregular.

The question here presented is whether interlocutory costs awarded upon an issue of law, where an issue of fact remains undisposed of, stay all proceedings on the part of the party required to pay the same, except to review or vacate the order or. judgment, without further direction of the court, until the payment thereof, the same as costs of a motion.

' Sections 3232 and 3233 of the Code of Civil Procedure provide: “ § 3232. Where an issue of law and an issue of fact are joined, between the same parties to the same action, and the issue of fact remains undisposed of, when an interlocutory judgment, is rendered upon the issue of law, the interlocutory judgment may, in the discretion of the court, deny costs to either party, or award costs to the prevailing party, either absolutely or to abide the event of the trial of the issue of fact. § 3233. Section 779 of this act applies to interlocutory costs, awarded as prescribed in the last section, as if they were costs of a motion.” Section 779 provides that, where costs of a motion are not paid as directed by the order, an execution against the personal property only of the party required to pay the same may be issued, which execution 'shall be in the. same form, as nearly as may be, as an execution upon a judgment, omitting the recitals and directions relating to real property, and all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed without further direction of the court, until the payment thereof. . .

In the case of Cassavoy v. Pattison (101 App. Div. 128), upon the authority of which the motion was decided, a final judgment for interlocutory costs awarded .was entered, directing that the defendant have execution for the costs as taxed. The plaintiff moved for a re taxation of Costs and for an order amending the judgment in so far as it directed a final judgment and execution, which in effect permitted a general execution against property, whereas, under section 779 of the Code of Civil Procedure, an execution against personal property only, omitting the recitals and directions relating to real property, is permitted. The decision in Cassavoy v. Pattison, reversing in effect the order of the Special Term denying plaintiff’s motion, is in accordance with.the provisions of the Code of Civil Procedure relating to a judgment and execution for interlocutory costs. But the further direction of the. court for. an amendment of the judgment, holding that while costs on the determination of a demurrer may be granted absolutely, they may not be collected until the-trial of other issues not disposed of, is contrary to the express provision of section 3232 of the Code of Civil Procedure, the language of which is, that where an issue of law and an issue of fact are joined between the same parties to the same action and the issue of fact remains undisposed of when an interlocutory judgment is rendered upon the issue of law, the interlocutory judgment may, in the discretion of the court, award costs to the prevailing party, either absolutely or to abide the event of the trial of the issue of fact. The question here was not directly before the court in that case. It arises under that part of section 779 of the Code of Civil Procedure which stays all proceedings of a party required to pay costs of a motion, except to review or vacate the order, without further direction of the court until the payment thereof, made applicable by section 3233 of said Code to interlocutory costs awarded as prescribed in section 3232 of said Code.

■ It seems to us that the language- of these sections is capable of but one interpretation, which is, that where interlocutory costs are awarded, all proceedings on the part of the party required to pay the same' are stayed the same as costs of a motion.

The following are cases which hold that these sections of' the Code of Civil Procedure introduce an entirely new rule as to interlocutory costs. (Bernheimer v. Hartmayer, 34 Misc. Rep. 346 ; Brassington v. Rohrs, 3 id. 258, 262 ; Barnard, P. J., Phipps v. Carman, 26 Hun, 519; Maeder v. Wexler, 43 Misc. Rep. 19.)

All concurred.

. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  