Karp v. Krone — 134 N.Y.S. 598

Majority

p. 598

KARP v. KRONE.

(Supreme Court, Appellate Term.

April 9, 1912.)

Headnote

Costs (§ 273^[1] )—Municipal Courts—Dismissal—Nonpayment of Costs.

The Municipal Court could not dismiss a complaint for nonpayment of costs imposed on the plaintiff upon an adjournment of the trial.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 1037-1039; Dec. Dig. § 273.*]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Louis Karp against William Krone. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

Argued March term, 1912, before GUY, LEHMAN, and BI-JUR, JJ.

Reuben Dorfman, for appellant.

The lower court adjourned the trial of this action from January 11th to January 17th, owing to the actual engagement of plaintiff’s counsel in the trial of an action in the Supreme Court, and imposed the sum of $5 costs upon the plaintiff. On January 17th, the case being called, the parties answered, “Ready;” the defendant’s counsel saying that the $5 costs had not been paid. The court thereupon directed that the said sum of $5 be paid at once; otherwise, the case would not proceed to trial. The plaintiff not hav

p. 599

ing paid these costs, the court dismissed the complaint, with costs, and from that judgment the plaintiff appeals.

The court clearly exceeded its power in refusing to proceed with the trial and dismissing the .complaint for nonpayment of costs. Farber v. Flauman, 30 Misc. Rep. 627 , 62 N. Y. Supp. 742 ; Fallon v. Crocicchia, 52 Misc. Rep. 504 , 102 N. Y. Supp. 541 ; Goldman v. Brooklyn Heights R. Co., 129 App. Div. 657 , 114 N. Y. Supp. 182 .

Judgment reversed, and new trial ordered, with costs to appellant - to.abide the event.