Cohu v. Husson

This is an appeal from an order made at special term compelling defendant’s attorney ^o 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 § 779 of the Code of Civil Procedure. 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 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 hot paid, &c., &m” It was upon this language that it was held by this court that costs of a motion *225did 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 of the Laws of 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, &c., &c.”

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 appeal 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.

Sedgwick, Ch. J., concurred.