Schwartz v. Schendel — 51 N.Y.S. 395

Majority

p. 395

SCHWARTZ v. SCHENDEL.

(23 Misc. Rep. 473.)

(Supreme Court, Appellate Term.

May 3, 1898.)

Headnote

1. Appeal ebom Justice—Payment op Costs.

Although an appeal from a justice’s order opening a default, under Laws 1896, c. 748, is subject to the provision of Code Civ. Proc. § 3Q47, requiring the payment by the appellant of the costs of the action, included in a judgment appealed from, it is thus subject only so far as, in the nature of things, the latter section is applicable.

3. Same.

Upon such an appeal by the party whose default has been opened, on the ground that the justice had no right to impose as a condition the payment of costs and disbursements awarded by the judgment, it is not necessary for him, in order to effect his appeal, to pay such costs and disbursements, but he need only pay the motion costs awarded by the order appealed from.

Appeal from district court.

Action by Olga Schwartz against Simon Schendel. Order opening default of plaintiff, and defendant appeals. Motion to dismiss.

Denied.

Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIE•GERIOH, JJ.

Abraham B. Schleimer, for the motion.

Benno Loewy, opposed.

This is a motion to dismiss an appeal taken from an order made by the justice below opening the defendant’s-default. The order in question was made upon certain conditions, —among others, that the defendant pay to the plaintiff’s attorney the sum of $17.50, the amount of costs awarded by the judgment which was opened; the sum of $16.25, the amount actually disbursed by the plaintiff in procuring the attendance of her witnesses-upon several dates when the cause had appeared upon the calendar of the court for trial; and, also, that he should pay to the attorney for the plaintiff the sum of $10, costs of the motion. The order is appealed from by the defendant for the purpose of obtaining a review of the right of the justice to impose the conditions-upon which the default was opened.

The plaintiff contends -that the defendant has not perfected his appeal, because of his failure to pay the $17.50 and the $16.25, thé payment of which formed part of the conditions specified in the order appealed from, and relies upon section 3047 of the Code of Civil Procedure, which requires the payment, at the time of serving his notice of appeal by an appellant to the person to whom it is delivered, of the costs of the action included in the judgment, and the sum of $2, as the fee of the justice for making the return. Chapter 748 of the Laws' of 1896 sanctions an appeal from such an order, and declares that it “shall lie as from a judgment in said court.” It has been held that such an appeal is subject to the provisions of section 3047 of the Code of Civil Procedure. Szerlip v. Bair, 20 Misc. Rep. 588 , 46 N. Y. Supp. 461 . This, of course, means so far as, in the' nature of things, that section may be applied. We are of the opinion that, as applied to such an order, the section must be construed as meaning the costs awarded upon the motion and included in the order, and that it certainly does not require, as contended in this case, the payment of .the costs which had been theretofore awarded in the action, the payment of which formed' part of the conditions upon which the relief sought for was granted.' The only costs that were awarded by the order were the motion costs, and these are the only costs which the defendant was called upon to pgy in order to perfect his appeal.

Motion denied, with $10 costs.

Cases cited

Szerlip v. Bair 20 Misc. Rep. 588 N.Y. App. Term 1897-07-01 p. 395