Will v. Barnwell

Brown, J. An interlocutory judgment was entered in Erie county clerk’s office February 10, 1909, upon an order of the Appellate Division sustaining defendant’s demurrer to plaintiff’s complaint, with leave to plaintiff to plead over upon paying to defendant $143.38 costs. Plaintiff has not paid these costs and defendant refuses to enter final judgment dismissing plaintiff’s complaint. Plaintiff moves for an order compelling defendant to enter such final judgment to the end that plaintiff may appeal from such judgment to the Court of Appeals. Defendant contends that because [642] plaintiff has failed to pay such costs of $143.38 and $104.54 costs awarded by the Court of Appeals upon defendant’s motion to vacate an appeal to that court all proceedings on the part of the plaintiff are stayed by force of the provisions of section 779 of the Code of Civil Brocedure, and he cannot make this application. The plaintiff perfected an appeal to the Court of Appeals from the order of the Appellate Division sustaining defendant’s demurrer. Shortly thereafter plaintiff made a motion in the Appellate Division for leave to appeal to the Court of Appeals, which motion was denied with $10 costs. Subsequently, the Court of Appeals, on the motion of the .defendant, dismissed plaintiff’s appeal to that court, with costs; these motion costs amount to $104.54. I.t is very clear that, by virtue of the provisions of section 779, all proceedings on the part of the plaintiff are stayed until the payment of these motion costs. ■ The claim of defendant, however, that the plaintiff is also stayed from taking any steps until he pays the costs awarded by the interlocutory judgment sustaining defendant’s demurrer cannot be sustained. It is only when interlocutory costs are awarded in an action in which issues of law and issues of fact have been joined, that the nonpayment of interlocutory costs under the provisions of sections 3332 and 3233 of the Code has the effect of staying proceedings. Bigelow v. Drummond, 109 App. Div. 132; Cohen v. Krulewitch, 81 id. 147. The costs awarded defendant upon sustaining his demurrer were not awarded in an action in which issues of law and issues of fact had been joined. There is no issue of fact to he determined. A final judgment can he rendered upon the only issue between the parties from which an appeal can be taken to the Court of Appeals. Ordered that the defendant enter final judgment sustaining his demurrer to plaintiff’s complaint and dismissing the same, upon plaintiff’s paying to defendant the motion costs of $104.54 within twenty days; and, in event such costs are not paid, plaintiff’s motion denied with $10 costs. Ordered accordingly.