Majority
p. 302Neugrosche v. Manhattan Railway Co. (City Court of New York, Special Term, Filed June, 1886.)
Headnote
1. Suing in forma pauperis—When order tares effect.The defendant, on having the complaint dismissed, is entitled to enter judgment for costs, unless the order in forma pauperis has been served or is presented to the clerk in opposition to the taxation.
8. Same—Opening judgment taken by default—Costs.
Leave to sue as a poor person does not deprive the court of power to impose costs against such person as a condition upon which a judgment by default will he opened.
Plaintht’s motion to show cause why the judgment entered herein in favor of the defendant and the default taken should not be vacated and set aside.
The order in forma pauperis not having been served, should have been presented to the clerk in opposition to the taxation of defendant’s costs. Not having been ' called to the attention of the defendant’s attorney in any form, their practice in entering judgment was not irregular. The proof is that this case was twice called on the calendar when it was reached, and no appearance having been made by the plaintiff the defendant handed up the notice of trial and had the complaint dismissed.
The default will be opened as a matter of favor, however, on payment, within five days, of twelve dollars costs to the defendant’s attorney. 1 Oiv. Pro. Rep., 131.