Hewett v. Cook — 75 A.D. 239

Majority

p. 239

Harry A. Hewett, Appellant, v. Philo B. Cook, Respondent.

Headnote

dosis, imposed as a condition of postponing a trial — where the case is thereafter noticed for trial by both parties the complaint should not be dismissed because of their non payment.

Costs of a term of court, imposed as a condition of the postponement of a trial* are payable immediately; if not so paid the party desiring to proceed with the trial may do so at.once. When the party seeking the postponement asks for-time, within which to pay the costs imposed as a condition of granting such, postponement, the court may grant such further favor on condition that, if the costs are not paid within the time specified, the complaint shall be dismissed, or the answer stricken out, as the case may be, on proof of the default.

Where, upon the application of a plaintiff, the trial of the action is postponed and the plaintiff does not ask for time in which to pay the costs imposed upon, him as a condition of granting the postponement, and the defendant does not. insist upon his right to have the costs paid immediately, the court has no power, several months after the postponement of the trial and after' both the. plaintiff and the defendant have noticed the case for trial, to make an order directing the plaintiff to pay the costs, imposed as a condition of granting the. postponement of the trial, within a specified time and that, upon his failure to do so, the complaint shall be dismissed.

Forsman, J., dissented.

Appeal by the plaintiff, Harry A. Hewett, from a judgment of' the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 1st day of February, 1902, dismissing the complaint, with notice of an intention to bring up for review upon such appeal an order of the Supreme Court,, entered in said clerk’s office on the 7th day of January, 1902, requiring the plaintiff to pay ten dollars term costs within twenty-days after entry of the order, and directing that, upon failure of the plaintiff to make such payment, an order be entered dismissing plaintiff’s complaint, with costs; also, an order in the action entered in said clerk’s office on the 29th day of January, 1902, dismissing-plaintiff’s complaint, with costs, and directing judgment accordingly.

The action is brought for an accounting between partners. The answer denies the partnership. The issue was upon the calendar for the Trial Term of the Supreme Court held in Broome county commencing September 16, 1901, and when regularly reached upon the call of the calendar plaintiff made an application for &,

p. 240

postponement of the trial, and the'trial was postponed by the court upon condition that the plaintiff pay to the defendant the costs of the term. Ho formal order was entered, but the costs were subsequently taxed at ten dollars. The costs were not paid, and on December 23, 1901, both plaintiff and defendant noticed the case for trial at the Broome Trial Term, to convene January 6, 1902, which notices were accepted. The defendant thereupon served upon the plaintiff an affidavit stating the above facts and a notice of motion for the Broome Special Term for an order dismissing plaintiff’s complaint, with costs. The order of January 7, 1902, described in the notice of appeal, was at said Special Term granted, and subsequently the further order described in the notice of appeal and the judgment appealed from was entered.

T. B. Merchant and L. M. Merchant, for the appellant.

C. H. Hitchcook, for the respondent.

When a party to an action asks a favor the court, as a condition of granting the favor, may impose any reasonable terms. The terms being known, the party asking the favor may refuse to accept the favor on the terms imposed, or he may accept the favor, in which case he is bound to comply with the conditions'.

Costs of a term imposed as a condition of the postponement of a trial are payable immediately. If the costs are not paid immediately the party desiring to proceed with the trial may do so at once. When a party not only asks to have the trial of the action postponed, but also asks for time- to pay the costs imposed as a condition of the postponement, it is not uncommon practice to grant such further favor on condition that if the costs are not paid within the time specified, the complaint shall be dismissed or the answer stricken out as the case may be, on proof of the default.

In this case the plaintiff did not ask for time in which to pay the costs imposed upon him and the defendant did not insist upon the costs being paid immediately as he could have done if he had desired.. Ho condition relating to the future payment of the costs was imposed by the court or accepted by the plaintiff. Whether the plaintiff would have accepted a further condition relating to the

p. 241

non-payment of costs does not appear. Section 779 of the Code of Civil Procedure provides how motion costs shall be collected. The orders on which the judgment herein is based were made not as a condition for a favor asked by the plaintiff, but they were made months after the Trial Term at which the trial was postponed and after both parties had again noticed the ease for trial.

They constitute an unusual and unauthorized way of collecting motion costs.

Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs, and the judgment set aside and vacated.

All concurred, except Fuksman, J., dissenting.

Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs, and the judgment vacated.