While the position of the defendant may be technically correct, in viev of the fact that the amended complaint has been served, has been demurred to, and that ai appeal from the decision upon that demurrer is now pending before this court, the questions involved _ on_ this appeal are academic. Substantial justice may be accomplished by affirming the orders reviewed by this appeal, without costs. If defendant shall within five days procure a retaxation of costs, as directed by Mr. Justice Garretson, and if within five days thereafter the amount of such costs is not paid by plaintiff to defendant, application may be made by defendant to the Special Term to stay all proceedings in this action, or "to dismiss the complaint, as it may be advised.