O'CONNOR v. LEVINE

O’CONNOR v. LEVINE. (No. 7513.) (Supreme Court, Appellate Division, First Department. June 18, 1915.) Costs <@=276—Waiver of Nonpayment as Staying Proceedings—Notice of Trial. A defendant, who serves a cross-notice of trial, thereby waives stay of proceedings under Code Civ. Proc. § 779, for nonpayment by plaintiff of motion costs, and he cannot thereafter enforce the stay and vacate an order for his examination before trial on the ground of any stay of proceedings. [Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1045-1047, 1058-1080; Dec. Dig. <@=276.] <©c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from Special Term, New York County. Action by Daniel P. O’Connor against Arthur J. Levine. From an order vacating an order for the examination of defendant before trial, plaintiff appeals. Reversed, and order for examination reinstated. See, also, 152 N. Y. S. 1131. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. William L. Tierney, of New York City, for appellant. Herbert C. Smyth, of New York City, for respondent. [MAJORITY — PER CURIAM.] PER CURIAM. The affidavit upon which the vacating order was made states the ground of the motion to be that at the time the order for examination was obtained by the plaintiff all proceedings on his part were stayed under section 779 of the Code of Civil Procedure, by reason of his failure to pay certain motion costs. It appears by the answering affidavit that on April 30, 1915, plaintiff served a notice of trial for the June term, which was accepted by the defendant and retained by him for a period of over 15 days, although said notice of trial was served 12 days after the stay went into operation, and that, on the said 30th day of April, a cross-notice of trial was served by defendant on plaintiff for said June term. While section 779 provides for a stay without further direction of the court until the pajunent of the motion costs provided for, it also contains this clause: “But the adverse party may, at his election waive the stay of proceedings.” It seems to us that the service by the defendant of his cross-notice of trial, being in the language of the books “an onward movement in the action,” was a waiver of the stay of proceedings, and said stay, having been once waived, could not thereafter be enforced. The order appealed from should be reversed, with $10 costs and disbursements, and the order for examination reinstated.