Hazard v. Wilson — 3 Abb. N. Cas. 50

Majority

p. 50

HAZARD v. WILSON.

New York Common Pleas; Special Term and Chambers,

October, 1877.

Headnote

AIotioss ahd Orders.—Judge.—Costs.—Stay by Hon-payment,

In an action in the Hew York common pleas, an ex parte order such as might be made by a judge out of court, is valid and must be obeyed, even though entitled in the supreme court, and made by a judge of that court. _

Where an order requires payment of costs absolutely, though without fixing anytime for payment, they must be paid before the party ■charged with them can take further proceedings in the cause.

Edward C. Hazard, Frank Creen and Albert J. Smith, sued William S. A. Wilson and John Armstrong, in the New Tork common pleas, on a promissory note. The action was commenced by service of summons and complaint, on September 1, 1877, on the defendant, John Armstrong.

On September 20, 1877, the last day to answer, in the absence from New York of Thomas Proctor, attorney for defendant Armstrong, said Armstrong by mistake informed a clerk in the office of his attorney, that this, action was in the supreme court, and acting

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on this information the clerk obtained from the supreme -court an order, entitled in that court, extending Armstrong’s time to answer, ten days.

On the 29th, the last day, Mr. Proctor, the attorney, served Armstrong’s answer on the managing clerk of the plaintiff’s, attorney, and the clerk received it, .and gave admission of “due service.”

Without returning this answer, the plaintiff’s attorney entered judgment, on October 4th, against the defendants, as by default for want of an answer. Armstrong’s attorney then took an order to show cause why the judgment should not be vacated.

Thomas Proctor, for the motion.

The judgment is irregular, because, 1. The answer, if regarded as a nullity, should have been immediately returned ; 2. The plaintiffs were concluded by their said admission of “due service.”^[4]

Hugh Porter, for plaintiffs, in opposition,

Contended that the order of the supreme court was a nullity.

[Orally.]—The order is valid. The judges of' this court have the power under section 354 of the Code of Civil Procedure, to grant such an order in a case brought in the supreme court, and a justice of. the supreme court has the like power in a case brought in this court, and this construction is supported by

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the decision In re Morgan, 56 N. Y. 629 .* The error in the title of the papers may be disregarded.

Plaintiffs’ attorney, without paying the costs required by the order entered on the above decision, immediately obtained an order to show cause, returnable-in less than ten days after the order was made, requiring defendant to show cause why the answer should not be struck out as frivolous.

Defendants’ attorney meanwhile obtained an order-requiring plaintiff to show cause why he should not have leave to amend his answer; and he returned to-plaintiffs’ attorney the order to show. cause why it should not be struck out as frivolous, with the objection that the proceeding was irregular, for the reason that the costs of the prior motion were unpaid. The-subject of both orders to show cause were discussed together.

Thomas Proctor, for defendants,

Insisted that the plaintiffs’ proceedings were absolutely stayed from the time the order granting costs was made, until the costs should be paid (citing Code of Pro. § 315;† Code

The motion to set aside the judgment as against the defendant Armstrong granted, with $10 costs ; and leave was given to Armstrong to defend, his answer so-served to stand as the answer.

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of Civ. Pro. § 779;* Thaule v. Frost, 1 Abb. New Cas . 298).

Hugh Porter, for plaintiff.

Held, that the costs not having been paid, plaintiff was stayed absolutely from the time of the service of the order until payment; and that the plaintiff’s motion was therefore irregular; and .granted defendant’s motion for leave to amend, and without costs to either party as against the other.

Cases cited

In re Morgan 56 N. Y. 629 N.Y. 1874-03-24 p. 52