Kennedy v. Wood — 26 N.Y. St. Rep. 34

Majority

p. 34

William S. Kennedy, as Receiver, App’lt, v. Jacob C. Wood et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed September 21, 1889.)

Headnote

1. Trial — Terms on adjournment — Code, § 3255.

Section 3255, Code Civil Procedure, limits the power of the court, on adjourning a trial, to requiring as a condition the payment of ten dollars costs and witness fees and taxable disbursements rendered ineffectual by the adjournment. The court has no power to impose a gross sum as a condition.

2. Appeal — Lies from order imposing illegal conditions.

An appeal will lie to general term from an order granting an adjournment, if the conditions imposed are illegal. ’■

3. Same — Waiver.

The right to appeal from such order is not waived by the payment by the aggrieved party, under protest, of the illegal amount to prevent a dismissal of his complaint.

Appeal from that part of an order granted at the Rensselaer circuit, which imposed as a condition of postponement of trial the payment by the plaintiff of the sum of fifty dollars within five days, in default of which the complaint should be dismissed, and also that no further application for postponement should ever afterward be made for a specified witness.

Plaintiff paid the costs imposed, under written protest, and reserving all rights.

Charles I. Baker (Henry A. King, of counsel), for app’lt; King & Rhodes (Charles E. Patterson, of counsel), for resp’t.

AYe are of the opinion that § 3255 of the Code of Civil Procedure limits the power of the court, on adjourning a trial, to requiring, as a condition the payment of ten dollars costs, the fees of witnesses and taxable disbursements rendered ineffectual by the adjournment. See Hall v. Dwinell, 10 Wend., 628 ; Noxon v. Bentley, 6 How., 418 ; Hand v. Burrows, 15 Hun, 481 .

The sum imposed in this case was fifty dollars, for costs and expenses in preparing for trial. AYe cannot construe this as meaning ten dollars costs and forty dollars witnesses fees and taxable disbursements. That is plainly not the meaning; and we think the court has no power to impose a gross sum as a condition.

Of course, the parties may agree on what the witnesses fees and the taxable disbursements are. Otherwise, they must be adjusted in the ordinary way. AYe have no doubt that an appeal lies to this court, if conditions of adjournment are imposed which are not legal. Hor is the right to such appeal waived by the fact that the aggrieved party, to prevent a dismissal of his complaint, has paid the illegal amount under protest He could do not otherwise with safety to himself.

As to the other part of the order, viz., that it was on the understanding that no further application, etc., should be made, we do not know from the language whether this was not an agreement volunteered by the plaintiff’s counsel to induce the. adjournment The language is not so clear as to put this beyond question.

The order must be -modified, so that the condition shall be on the payment of ten dollars costs, and of fees of witnesses and other taxable disbursements made or incurred which are rendered ineffectual by the adjournment.

On the adjustment of these witnesses fees and taxable disbursements, the defendants must repay any part of the fifty dollars in excess of the sum thus allowed. Ho costs of this appeal to either party.

Putnam and Fish, JJ., concur.