General
Vincenzo Brangaccio, Respondent, v. Weber Piano Company, Appellant
143 A.D. 612·New York Supreme Court, Appellate Division·1911·NY
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Opinion
Vincenzo Brangaccio, Respondent, v. Weber Piano Company, Appellant.
Second Department,
March 24, 1911.
Costs—failure to pay — stay—motion for leave to sue as poor person.
Costs awarded upon an appeal from an order made at the Special Term come within the provisions of section 779 of the Code of Civil Procedure, staying proceedings where they are not paid within the time fixed by the order, or withi ten days after service of a copy of the order, if no time be fixed.
The Special Term has no power to entertain a plaintiff’s motion for leave to sue as a poor person where proceedings upon his part have been stayed by section 779 of the Code of Civil Procedure owing to his failure to pay costs.
Appeal by the defendant, the Weber Piano Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9tli day of June, 1910, permitting the plaintiff to prosecute the action as a poor person.
Eugene M. Hawkins (Bertrand L. Pettigrew with him on the brief], for the appellant.
Harry S. Lucia, for the respondent.
[MAJORITY — Per Curiam :]
Per Curiam :
We have decided that costs awarded upon an appeal from an order made at Special Term are within the terms of section 779 of the Code of Civil Procedure. (Muller v. Brooklyn Heights R. R. Co., 139 App. Div. 727.) We have also decided in the same case that if at the time when plaintiff made his motion for leave to sue as a poor person this statutory stay had become operative, the court at Special Term had no power to entertain the motion, its action in granting the relief was unauthorized, and the order granting such motion must be reversed. The fact that such stay had become operative in this case is admitted by plaintiff in his petition.
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied.
Jebes, P. J., ITirsohberg, Burr, Thomas and Carr, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied.