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Robinson v. Klein

30 N.Y.S. 262 Court N.Y.C.P. English

Delivered by GIEGEBICH, J.

Contents

Majority

p. 262
(31 Abb. N. C. 481.)
ROBINSON v. KLEIN et al.
(Common Pleas of New York City and County, Special Term.
May, 1894.)

Headnote

Costs of Motion—Stay of Proceedings—Waiver.
Defendant does not waive the stay of plaintiff’s proceedings, worked by nonpayment of costs awarded on motion to make the complaint more definite and certain, by answering an amended complaint served before the stay began to operate.
Action by Frederick Bobinson against Marie Anna Klein and others. A motion to make the complaint more definite and certain having been sustained, with costs, defendants gave notice of stay of proceedings until payment of the costs. Before the stay began to operate, plaintiff served an amended complaint, which defendants answered, setting up a counterclaim. ¡Plaintiff replied thereto, and defendants moved for judgment on the ground that plaintiff had no right to file a reply, his proceedings being stayed.
Herbert Grundel, for the motion.
Menken Bros., opposed.

The plaintiff having failed to pay the motion costs, Ms proceedings were stayed until payment' thereof, the stay extending to the service of a reply to the counterclaim pleaded by the defendants. Lyons v. Murat, 4 Abb. N.

p. 263
amended complaint, which was served before the stay began to operate. Code Civ. Proc. § 779; Marks v. King, 66 How. Pr. 463 . Motion granted, with $10 costs, unless within 10 days after entry of the order the plaintiff pay the costs of the former motion and $10 costs of this motion, making in the aggregate $20 costs, and serve his reply herein, leave to serve the same being granted upon payment of $20 costs within the time above specified.

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