Opinion
October 9, 1939.
Order denying defendant's motion that the action be marked "stayed" on the Trial Term calendar, pursuant to section 1520 of the Civil Practice Act, until appeal costs heretofore awarded to defendant by order of this court on a prior appeal shall have been paid, reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs. On an appeal by defendant this court reversed, with ten dollars costs and disbursements, an order striking out two separate, complete defenses and one partial defense contained in defendant's answer, and denied the motion with ten dollars costs. Costs amounting to $142.89 were taxed and admittedly they have not been paid, although a copy of the order of reversal was served upon plaintiff's attorney. Costs awarded by this court are motion costs within the purview of section 1520 of the Civil Practice Act ( Muller v. Brooklyn Heights Railroad Co., 139 App. Div. 727) and, therefore, it was error not to mark the action stayed until the payment of the costs. Lazansky, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur.