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Robinson v. Klein

31 Abb. N. Cas. 481 Court N.Y.C.P. English

Delivered by Giegerich, J.

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p. 481
ROBINSON v. KLEIN.
N. Y. Common Pleas; Special Term,
May, 1894.

Headnote

Costs ; stay for non-payment of motion costs.] The stay of proceedings on the part of a plaintiff resulting from non-payment of costs awarded defendant upon a motion, extends to the service of a reply to a counterclaim, and defendant does not waive such stay by service of the answer containing the counterclaim before the stay has begun to operate.
Motion by defendant for judgment, and a writ of inquiry.
Action by Frederick Robinson against Marie Anna Klein, and others.
Defendant obtained an order that the complaint be made more definite and certain with $10 costs of motion, and served a copy of the order on plaintiff’s attorney with notice that defendant required the payment of the costs mentioned therein, and would consider all proceedings on the part of plaintiff stayed until they were paid. Within ten days after the service of the copy of such order plaintiff served an amended complaint. On October 23, 1893, defendant served an answer thereto containing a counterclaim. On November 13, 1893, plaintiff served an order extending his time to reply, which defendant returned on the ground that plaintiff’s proceedings were stayed because of non-payment of costs. Thereafter, plaintiff served a reply which was returned for like reason.
Herbert Grundel, for the motion.
Menken Brothers, opposed.

The plaintiff having failed to pay the

p. 482
motion costs, his proceedings were stayed until payment thereof, the stay extending to the service of a reply to the counterclaim pleaded by the defendants (Lyons v. Murat, 4 Abb. N. C. 13 ; s. c., 54 How. Pr. 23 ). The defendants did not waive the stay by serving an answer to the amended complaint, which was served before the stay began to operate (Code Civ. Pro. 779; Marks v. King, 66 How. Pr. 453 ).

Motion granted, with $10 costs, unless withimten days after entry of the order the plaintiff pay the costs of the former motion and $10 costs of this motion, making in the aggregate $20 costs ; and serve his reply herein, leave to serve the same being granted, upon payment of $20 costs within the time above specified.

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