¶1Plaintiff sues to recover upon an alleged agreement by defendant to pay rent, because it had occupied premises, in connection with its codefendant, for two months.
¶2There was no lease but an alleged written obligation, which seems to be treated by all the parties as a guaranty, and which respondent claims is a promise to pay. The case is at once taken out from under section 1778 by good authority (88 N. Y. 424), and as it was thus not necessary to serve with the answer an order that the issues be tried, now, to sustain the order, there must be some other reason than that advanced by the respondent. . Such other reason is that motion costs had not been paid. But the order therefor was only served two days prior to the service of answer, and did not contain, so far as the appeal-book shows, any time limit within which payment was to be made; hence, ten days (§ 779) is the time fixed, of which only two days had expired. The papers also show that the answer had not been returned when judgment was *171entered. This may be held a waiver of objection, and made the entry of judgment an impropriety at that time, now to be relieved against.
¶3Order appealed from reversed and motion granted, with costs and disbursements to be offset against costs of motion accrued below.
¶4O’Dwyer, L, concurs.
¶5Order reversed and motion granted, with costs to be offset against costs of motion.