Legal Opinion

Pettibone v. Drakeford

New York Supreme Court

Decided October 15, 1884Published

Motion to dismiss appeal upon the ground that appellant’s proceedings were stayed at the time this notice of appeal was served on respondent’s attorney. Appeal from order granting a new trial, granted May 3, 1884. Upon a motion by appellant to resettle this order on the 2d day of June, 1884, Mr. justice Macomber denied the motion for resettlement and- directed plaintiff to pay defendant ten dollars costs of this motion.

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Motion to dismiss appeal upon the ground that appellant’s proceedings were stayed at the time this notice of appeal was served on respondent’s attorney. Appeal from order granting a new trial, granted May 3, 1884. Upon a motion by appellant to resettle this order on the 2d day of June, 1884, Mr. justice Macomber denied the motion for resettlement and- directed plaintiff to pay defendant ten dollars costs of this motion. A copy of the latter order was served on plaintiff’s attorneys on the 5th day of June, 1884. On the 7th day of June, 1884, plaintiff’s attorneys served notice of appeal from…

1Opinion of the Court

The Court

Held,“ that the stay of proceedings for the nonpayment of costs provided for in the order, under section 779 of the Code of Civil Procedure, does not operate to stay proceedings until default in payment; and that such default does not exist until the expiration of ten days from the service of the order, or the time fixed in the order (Marks agt. King, 13 Abb. N. C., 374, approved).

2Cases cited1 opinion

  1. Marks v. KingNew York Supreme Court · 1884

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