(dissenting):
This is one of three appeals taken on behalf of defendant, involving the consideration of substantially the same facts, but presented in such manner as to require separate consideration. The defendant obtained his stay of proceedings in due course, the details of which should be stated in the appeal between the same parties decided heretofore, directing the payment of a part of the sum deposited in lieu of an undertaking upon obtaining the order of arrest. The stay had. been obtained, before the cause was called upon the callendar for trial, and when so called, the defendant answered ready, not only on one but on several calls. It is disputed, as revealed by all the appeals considered together, whether the objection founded upon the stay to the plaintiff’s proceeding to trial was interposed before or after the jury was impanneled. The judge presiding at the trial overruled the objection, and it must be assumed that it was done properly, and that the objection came too late. The result of it was, that the stay, if any existed, was waived so far as it affected the right of the plaintiff to proceed to judgment.
It cannot be supposed the Legislature intended by any provision that may be contained in section 779 of the Code of Civil Procedure, to continue a stay therein provided for after judgment, so as to prevent an application to set off costs, the non-payment of which created the stay.
The design of the statute seems to be to secure the payment of interlocutory costs prior to judgment obtained. Of course, the person entitled to those interlocutory costs may waive the right to insist upon them, and thus lose the effect of the stay contemplated, and this may be done either directly or indirectly by waiver. In this case, as already suggested, it seems to have been done by waiver; the defendant having, by his conduct, when the case was called upon the calendar, placed it in the power of the judge to decide that the plaintiff had the right of proceeding.
*222For these reasons we think the set off was properly allowed and the order appealed from should be affirmed, but without costs to •either party.
Order reversed and motion denied, with ten dollars costs and disbursements.