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Church v. Stevens

110 N.Y.S. 209 Court N.Y. App. Term Decision date 1908-05-15 English

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p. 209
CHURCH v. STEVENS.
(Supreme Court, Appellate Term.
May 15, 1908.)

Headnote

Dismissal and Nonsuit—Vacating Order—Conditions—Costs.
Costs should not be imposed upon plaintiff as a condition to vacating an order dismissing a complaint, where the dismissal resulted from plaintiff's failure to watch the calendar of the Trial Term, Part I, after the cause had been restored to Trial Term, Part 4, where short causés were tried, since after the restoration of the cause to Part 4 plaintiff was under no obligation to watch the calendar of Part 1.
Appeal from City Court of New York, Special Term.
Action by E. Bayard Church against Leslie Stevens. From a judgment imposing costs on plaintiff as a condition of vacating an order dismissing the complaint, plaintiff appeals. Reversed.
See 56 Misc. Rep. 572 , 107 N. Y. Supp. 310 .
Argued before GILDERSLEEVE, P. J., and GIEGERICH and GREENBAUM, JJ.
Michael F. Dee, for appellant.
V. Phillip Mravlag, for respondent.

The plaintiff was entitled to the order setting aside the alleged default as a matter of absolute right. The imposition of $30 costs as a condition of granting the relief asked for was improper, as plaintiff was under no obligation to watch the calendar of

p. 210
Trial Term, Part 1, when the case had been restored to Trial Term, Part 4, where short causes are tried.

So much of the order as is appealed from is reversed, with $10 costs and disbursements to appellant.

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