Butler v. Bates — 5 Hill & Den. 375

Majority

p. 375

Butler vs. Bates.

Headnote

Though referees impose costs as the condition of granting an adjournment to a party, and he refuse to pay, the court will not award a precept against him, nor compel payment on motion.

The only remedy tif the opposite party in such case, is to proceed at once to a hear, ing. Semble.

The referees may require the party applying for the adjournment to stipulate in writing that, in default of payment, the collection of the costs may be enforced by a rule in the cause. Per Cowen, J.

The cause was referred to a sole referee, who, on motion of the defendant, put off the hearing upon payment of costs, which, though taxed and demanded of the defendant, were not paid. A motion. was now made in behalf of the plaintiff for a precept against the defendant, or for a rule that he pay the costs of the plaintiff’s preparation for a hearing.

W. McCall, for the plaintiff.

W. Hunt, for the defendant.

In Johnson v. Gay, (6 Cowen, 54,) this court held that, if referees could adjourn upon the terms

p. 376

of the party paying costs, yet any order or direction made by them would afford no ground for compelling the payment by attachment. Since that decision the 2 R. S. 305, 6, 2d ed., § 44, gives referees a qualified power to adjourn, which Sickles v. Fort ( 12 Wend. 199 ) holds may be on payment of costs, or, as there expressed, “ they may impose such terms as are usually imposed by courts upon putting off trials.” This case, however, does not hold that the terms will be enforced by motion, as they may on putting off a trial at the circuit; nor does Van Rensselaer v. Fay, ( 18 Wend. 509 .) The result of the cases is, that the terms can operate as a mere condition, which, if not complied with, entitles the party opposing the adjournment to proceed at once to a hearing. This seems to be his only remedy. The referee may doubtless, before allowing an adjournment, require the party applying to stipulate in writing that, if the costs be not paid, the collection may be enforced by a rule in the cause.

Motion denied.