p. 859TEN EYCK v. TOWN OF WARWICK et al.(Supreme Court, Special Term, Kings County.Headnote
Costs—Remedies—Stay of Proceedings.Code Civ. Proc. § 779, which provides that where costs are not paid within the time limited, all proceedings by the party required to pay the same, except to review or vacate the order, are stayed, does not apply to a motion by plaintiff for leave to enter final judgment dismissing the complaint after an order sustaining a demurrer thereto has been affirmed on appeal.
Action by Coe H. Ten Eyck against the town of Warwick and others for an injunction. An order continuing an injunction pendente lite was reversed on appeal, with costs and disbursements. 27 N. Y. Supp. 536 . Afterwards an interlocutory judgment entered on a demurrer to the complaint was affirmed, with costs. 28 ¡N. Y. Supp. 1115. The costs so awarded to defendants have not been paid. Plaintiff moves for leave to enter final judgment dismissing the complaint. Granted.
Clarence C. Ferris, for plaintiff.
Henry Bacon and Bacon & Merritt, for defendant town of Warwick.
This is an application on behalf of the plaintiff for leave to enter final judgment dismissing the complaint, which judgment the defendant the town of Warwick is entitled to enter, but declines to enter. The application is opposed on the ground that the plaintiff is in default for the nonpayment of costs heretofore awarded against him in the action; that defendant relying upon section 779 of the Code, which provides that, where costs are not paid within the time fixed for that purpose, all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed, without further direction of the court, until the payment thereof. I think it would be a forced construction of this section to hold that it operates to prevent a litigant from taking steps to compel his adversary to place upon the record of the court in an effective manner a judgment in favor of that adversary and against the applicant. The section could never have been intended to prevent a party from insisting upon the entry of a judgment against himself. It may very well be that after the entry of such a judgment in favor of the town of Warwick in the present action section 779 will have the effect of staying all proceedings on the part of the plaintiff to review that judgment until the motion costs here
p. 860tofore awarded to the defendant shall be paid, but that will be a matter for future consideration. The plaintiff may have leave to-enter final judgment herein in accordance with the directions of the-interlocutory judgment, unless such judgment is entered by the defendant within 10 days after service of notice of the entry of the-order to be made upon this motion.