Myers v. Myers — 2 N.Y.S. 465

Majority

p. 465

Myers v. Myers et al.

(Supreme Court, General Term, Fifth Department.

October, 1888.)

Headnote

1. Appeal—Appealable Obdep.s—Continuance.

An order postponing the trial of a cause for the term is discretionary, and not appealable.^[1]

2. Same—Review.

A direction, in an order postponing a trial, that the plaintiff pay costs which had been previously awarded against him, is harmless, and cannot be reviewed on appeal, where the time for appeal from the original orders allowing the costs has expired.

Appeal from circuit court, Niagara county.

An appeal from an order made at the Niagara circuit, on the defendants’ motion, postponing the trial of the cause for the term. At the time the no

p. 466

tice of appeal was served by the plaintiff, he was in default in the non-payment of costs awarded by two separate orders previously granted at special term in the sum of $10 each. The order appealed from contains a direction that the plaintiff pay the costs awarded to defendants in each of the said orders within 30 days from the time of the service of the order appealed from. The previous orders allowing costs were granted and served more than 30 days prior to the service of the notice of trial by the plaintiff. In the notice of appeal it is stated that the appellant Intends to bring up for review the two orders mentioned.

Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.

Henry M. Davis, for appellant. Joel L. Walker, for respondents.

So much of the order appealed from as postponed the trial of the action was discretionary with the trial judge, and not appealable. The portion of the order directing the payment of the costs previously awarded, and which remain unpaid, was not the original award of costs; and the direction to pay the same was harmless, and did not alter or enlarge any liability on the part of the appellant to pay costs, and was unadvisably or by mistake inserted in the order. On an appeal from an order of this character the appellant cannot bring up for review any separate and previous determination of the court in the action. The time to take an appeal from the previous order granted at special term had expired when this appeal was taken. The order appealed from is affirmed, with $10 costs and disbursements. All concur.