Hirschhorn v. Friedberg

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 recomjening of the court the plaintiff, through the law clerk, made a motiop 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 tne defendants $10 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 coijceded 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.

an adjournment, after favor to the plaintiff. The order granting the plaintiff’s motion for the trial of the action was commenced, was a 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. Section 195, Municipal Court Act; Poland v. Minshall (Sup.) 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!, o's motions to vacate attachments, orders of arrest, or injunctions,lor, open defaults, 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. Matte): of Waverly Waterworks Co., 85 N. Y. 478 . In the case at bar tjhe 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, 93 N. Y. Supp. 416 .

The order appealed from should be • affirmed!, with costs.' All concur. ....