Metropolitan Funeral Directors Ass'n v. Zebrowski

14 Misc. 2d 1072, 181 N.Y.S.2d 278, 1958 N.Y. Misc. LEXIS 2119

Opinion

George Timer, J.

Motion to dismiss the answer of defendants for failing to pay costs of motion is denied. There is no provision under section 1520 of the Civil Practice Act for the relief requested. The court may not in the present circumstances, on the theory of punishing for a contempt, deny a party the right to defend an action. It may stay all further proceedings, hut it may not deprive the defendants of their right to defend in the event of compliance with the order (cf. Feingold v. Walworth Bros., 238 N. Y. 446).

Cross motion is denied under section 1520 of the Civil Practice Act since all proceedings on part of the party required to pay the costs, except to review or vacate the order, are stayed without further direction of the court until the payment thereof (Schechter v. Lichtenstein, 223 App. Div. 60).