March 24, 1911.
Eugene M. Hawkins [ Bertrand L. Pettigrew with him on the brief], for the appellant.
Harry S. Lucia, for the respondent.
We have decided that costs awarded upon an appeal from an order made at Special Term are within the terms of section 779 of the Code of Civil Procedure. ( Muller v. Brooklyn Heights R.R. Co., 139 App. Div. 727.) We have also decided in the same case that if at the time when plaintiff made his motion for leave to sue as a poor person this statutory stay had become operative, the court at Special Term had no power to entertain the motion, its action in granting the relief was unauthorized, and the order granting such motion must be reversed. The fact that such stay had become operative in this case is admitted by plaintiff in his petition.
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied.
JENKS, P.J., HIRSCHBERG, BURR, THOMAS and CARR, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied.