Eisenlord v. Clum , 59 N.Y. Sup. Ct. 461 ( 1889 )

Per Curiam.

Section 779 of the Code of Civil Procedure speaks of “costs of a motion, or any other sum of money.” This language does not apply to the costs of an appeal from an order granting a new trial on the merits. The costs granted on such an appeal are not “ costs of a motion, or a sum of money directed by an order to be paid;” therefore the Code did not stay plaintiff’s proceedings in this case. Even if there had been a stay of plaintiff’s proceedings under this section, still the defendants’ practice was wrong. Under section 980 the defendants, having noticed the cause, might bring it to trial, and might take a dismissal of the complaint if the plaintiff was not ready to proceed. But here the plaintiff was ready and anxious to proceed, and the defendants insisted the plaintiff should not proceed'. Under such circumstances, it was unreasonable to permit defendants to take a dismissal of the complaint. If there had been some motion costs which remained unpaid, and the defendants had insisted on the benefit of section 779, all he should have had would have-been a mere stay of proceedings. The "defendant was blowing hot and blowing cold,—insisting under his notice of trial that plaintiff should proceed, and under the non-payment of the costs that he should not. The order is reversed, with $10 costs and printing disbursements.