RUGG, C. J. This action at law was tried on its merits in a district court. The finding was for the plaintiff. The case then came before the appellate division and it was ordered that the report be dismissed. The defendant claimed an appeal. The clerk of the court gave to counsel for the defendant notice in writing under date of June 12, 1931, of the amount of the estimate of the expense of preparation and transmission of the necessary papers and copies of papers for entry of the case in the full court. The defendant did not within the twenty days thereafter specified by the governing statute (to be quoted later) pay to the clerk the amount of the estimate, but did make such payment five days after the expiration of that time. On July 16, 1931, the plaintiff filed a motion to vacate the appeal and the defendant a motion for an extension of time in which to pay the amount of the estimated expense. These two motions were heard and considered and disposed of by a single Decision and Order whereby the appellate division ordered that the plaintiffs motion to dismiss the appeal of the defendant be allowed and that the defendants motion to extend time for payment of the estimated expense be denied. Thereupon the defendant appealed from the action of the appellate division allowing the plaintiffs motion to dismiss the defendants appeal. He did not appeal from its action denying his motion to extend the time for paying the estimated expense.