The order, from which the appeal in this action is taken, is not appealable.

Assuming that it affects a substantial right, it does not determine or discontinue the action. It enables the plaintiff to effect a discontinuance by the payment of the costs and disbursements necessary for that purpose, but does not of itself operate as a discontinuance.

If such payment is not made in proper time, the defendant will be at liberty to proceed in the action.

The appeal should be dismissed with costs.

For dismissal of the appeal, Lott, Sutherland, Smith and Ingalls, JJ., and Earl, Oh. J.

For affirmance, Hunt, Foster and Grover, JJ.

Appeal dismissed with costs.

Wm. O. Johnson, for the appellant.

Sherman S. Sogers, for the respondent.