Opinion
June, 1915.
Present — Ingraham, P.J., McLaughlin, Laughlin, Clarke and Scott, JJ.
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 fifteen days, although said notice of trial was served twelve days after the stay went into operation, and that, on the said thirtieth 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 payment 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 ten dollars costs and disbursements, and the order for examination reinstated.
Order reversed, with ten dollars costs and disbursements, and order for examination reinstated.