Inasmuch as the ten dollars costs of motion in the order of January, 1887, were allowed to abide the event, the non-payment of them by the plaintiff does not permit the defendant to avail of the provision in § 779 of the Code, of Civil Procedure in respect to a stay of proceedings. Upon the questions made as to the non-payment of the costs of the appeal included in the judgment of affirmance of the order granting -a new trial, which costs amounf to $89.03, the cases of Eisenlord v. Clum and others, 24 N. Y. State Rep., 102, and Verplanck v. Kendall, 47 Superior Court, 15 J. & S., 513, are in point, and adverse to the decision made at special term in this case; however, Phipps v. Carman, 26 Hun, 518, seems to be a decision which would support the order appealed from. An examination of chap. 390, § 3, of the Laws of 1847, of § 779 as it appeared in the Code of Remedial Justice, being chap. 448 of the Laws of 1876, 2d. vol, of the Session Laws of 1876, p. 146, and § 12 of chap. 431 of the Laws of 1876, vol. 1 of the Session Laws of 1876, p. 456; Mr. Throop’s note to § 779 of the Code of Civil Procedure, inclines us to follow the decision of the third department in Eisenlord v. Clum and others, supra.
We think the order should be reversed.
Order reversed, with ten dollars costs and disbursements.
Martin and Merwin, JJ., concur.