Farber v. Flauman

30 Misc. 627, 62 N.Y.S. 784

Opinion

O’Gorman, J.

The trial justice had an undoubted right to impose the costs in question as a condition of the adjournment sought by the defendants (Laws of 1882, chap. 410, § 1420, subd. 3), but the nonpayment of these costs did not deprive the defendants of the right to take part in the trial on the adjourned day. Section 779 of the Code of Civil Procedure, providing for the staying of proceedings of the party defaulting in the payment of costs, has no application to the Municipal Court. Even wheré that section is applicable, the nonpayment of costs never impairs the defensive rights of a party. Randell v. Abrisqueta, 20 Abb. N. C. 292. The stay mentioned in section 779 of the Code is intended only to prevent an onward movement in the action by the party who owes costs of motion. When the plaintiff moved his case for trial on the adjourned day, the defendants should have been permitted to participate therein, and introduce their proofs. Where motion costs are granted in the Municipal Court, they are to be included in the judgment if the party is successful, or offset against the costs of the successful party, if the party entitled to the costs should be finally defeated.

Beekman, P. J., and Giegerich, J., concur.

Judgment reversed and new trial ordered, with costs to appellants, to abide event.