Eisenlord v. Clum — 59 N.Y. Sup. Ct. 461

Majority

p. 461

JOHN H. EISENLORD, Appellant, v. DAVID H. CLUM, CATHARINE L. EISENLORD and Others, Respondents.

Headnote

Stay of proceedings because of non-payment of costs — not applicable to costs on cm appeal from an order granting a new trial — rights ofapan'ty entitled to costs, under section 779 of the Code of Civil Procedure, to a dismissal of the complaint.

The provisions oí section 779 of the Code of Civil Procedure, to the effect that “where costs of a motion, or any other sum of money directed by an order to be paid,” are not paid, subsequent proceedings shall be stayed, do not cover or apply to the costs of an appeal from an order granting a new trial on the merits.

A defendant, who has noticed a cause for trial, may bring it on for trial and take a dismissal of the complaint if the plaintiff is not ready to proceed; but where the plaintiff is ready and anxious to proceed, and the defendant, because of the failure of the plaintiff to pay certain costs awarded against him, insists that

p. 462

tlie plaintiff shall not proceed, he cannot, under such circumstances, take a dismissal of the complaint. All that he would be entitled to under such circumstances would be to a stay of proceedings.

Appeal by tlie plaintiff from an order, made at tlie Montgomery Circuit, and entered in the clerk’s office of the county of Montgomery on April 9, .1889, dismissing the plaintiff’s complaint.

The action was in ejectment, on a former i^ial of which a verdict had been rendered for the plaintiff, a motion by the defendants on the minutes for a new trial granted, and the verdict set aside. The plaintiff appealed' to the General Term from such order granting a new trial, where the order was affirmed, with costs to tlie defendants. The case was noticed for trial by the defendants for the Montgomery Circuit, of February, 1889, at which counsel appeared on both sides, and the defendants’ counsel, although the plaintiff’s counsel was ready to,proceed, objected to any proceedings being taken on the part of the plaintiff for the reason that the costs, awarded to the defendants on appeal to the General Term from the order granting a new trial in the action, had not been paid, and claiming that until such payment the proceedings on the part of the plaintiff were stayed under the provisions of section 779 of the Code of Civil Procedure. The court directed the entry of an order, dismissing the complaint, providing/ however, that if the plaintiff should pay the costs on or before the following Thursday the dismissal should be set aside and the case be restored to the calendar.

A. J. Abbott, for the appellant.

D. 8. Morrel, for the respondents.

Section FT9 of the Code of Civil Procedure speaks of “ costs of a motion or any other sum of money.” This language does not apply to the costs of an appeal from an order granting a new trial on the merits. The costs granted on such an appeal are not “ costs of a motion or a sum of money directed by an order to be paid.” Therefore, the Code did not stay plaintiff’s proceedings in this case.

Even if there had been a stay of plaintiff’s proceedings under this section, still the defendants’ practice was wrong. Under section 980, the defendants having noticed the cause, might bring it to

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trial and might take a dismissal of the complaint if the plaintiff was not ready to proceed. But here vthe plaintiff was ready and anxious to proceed, and the defendants insisted the plaintiff should not proceed; under such circumstances, it was unreasonable to permit defendants to take a dismissal of the complaint. If there had been some motion costs which remained unpaid, and the defendants had insisted on the benefit of section 779, all they should have had would have been a mere stay of proceedings. The defendants were blowing hot and blowing cold — insisting under their notice of trial that plaintiff should proceed, and under the non-payment of the costs that he should not.

The order is reversed, with ten dollars costs and printing disbursements.

Present — Learned, P. J., Landon and Ingalls, JJ.

Order reversed, with ten dollars costs and printing disbursements.