Hirschhorn v. Friedberg — 147 A.D. 116

Majority

p. 116

David Hirschhorn, Appellant, v. Morris Friedberg and Jacob Youdelman, Respondents.

Second Department,

November 17, 1911.

Headnote

Practice — adjournment after trial commenced — Municipal Court — . power to impose conditions — failure to comply with conditions — dismissal of complaint.

A justice of the Municipal Court of the city of New York may, as a condition for granting a motion for an adjournment after a jury has been drawn and sworn, require the applicant to pay ten dollars costs and a jury fee on or before a specified date.

Where the plaintiff accepted the condition, and failed to pay the costs within the time set, it is the same as if there had been.no adjournment, and the court may dismiss the complaint.

Appeal ' by the plaintiff, David Hirschhorn, from an order of the Municipal Court 'of the city of New York, borough of Brooklyn, in favor of the defendant, entered in the clerk’s office of said court on the llth day of March, 1911, denying the plaintiff’s motion to- vacate an order of dismissal in the above-entitled action.

Morris Meyers, for the appellant.

Max Storch, for the respondents.

The plaintiff in this action answered ready on the call of the calendar. Subsequently, through a clerk in the office of his attorney, he made an application for an adjournment, which was denied, and the case was marked ready and sent to Part 2 of the court for trial. The jury was drawn and sworn in, when a recess was taken for luncheon. Upon the reconvening of the court the plaintiff, through the law clerk, made a motion to adjourn the case, submitting an affidavit of a physician to the effect that one Samuel Meyers, not the attorney of record in the case, was ill. Defendants strenuously, objected to the adjournment, but the court granted the motion on condition that the plaintiff pay to the defendant ten dollars costs on or before February 20, 1911, and also the jury fee on or before the same date if a jury trial was desired, and it was consented to on the part of the plaintiff that, in the event of failure to comply with the terms and conditions of the order, the defendants should be entitled to.an-order dismissing the complaint. It is conceded that the plaintiff did not pay the costs under the conditions of the order granting the adjournment, and an order was subsequently entered dismissing the complaint. Thereafter plaintiff, through his attorney, moved the court to open the default, and from an order denying such motion the plaintiff appeals to this court.

The order granting the plaintiff’s motion for an adjournment after the trial of the action was commenced was a favor to the plaintiff. The court unquestionably had the right and the power to compel the plaintiff to go on, and having this right and power it could impose any conditions which to the court seemed reasonable as a condition of granting the favor. (Mun. Ct. Act [Laws of 1902, chap. 580], § 195; Poland v. Minshall, 96 N. Y. Supp. 200 .) Here the conditions imposed were accepted. The court retained jurisdiction pending the payment of the costs at the time fixed in the order, and, upon it appearing to the court that the order had not been complied with, the order dismissing the complaint, as for a default, followed of course.' In all cases where a motion is made addressed to the favor of the court, which it may in its discretion grant or refuse, as motions to vacate attachments, orders of arrest, injunctions, or open defaults,

p. 118

the exercise of the discretion not being limited by statute, it may impose terms to be complied with as a condition of granting its favor, and if the moving party cannot or will not comply with the conditions, the result is simply a denial of his motion, a result which the court could have produced by an absolute denial, (Matter of Waverly Water Works Co., 85 N. Y. 478 .) In the case at bar the case was adjourned conditionally. The plaintiff, accepting the conditional adjournment, failed to perform the condition, with the result, that there was no adjournment. The case was still in the control of the court, and the judgment of dismissal was in harmony with the terms of' the agreement. (See Rawson v. Silo, 105 App. Div. 278 , 281.)

The order appealed from should be affirmed, with costs.

Jenks, P. J., Burr, Carr and Rich, JJ., concurred.

Order of the Municipal Court affirmed, with costs.

Cases cited

In re Waverly Water-Works Co. 85 N. Y. 478 N.Y. 1881-06-14 p. 118