Remington v. Westermann

28 N.Y. Sup. Ct. 440

Opinion

Barrett, J.:

The order was, that the action pending in the Superior Court be dismissed, unless the plaintiff therein file a bond for costs, and pay $10 within five days. He did not file the bond and pay the $10, he only filed the bond. In consequence of this non-compliance, his complaint, on motion of the defendant in that action, was absolutely dismissed. The legal effect of this was the non-acceptance by such defendant of the bond in question. The bond, consequently, never went into effect, or became operative. The defendant could have waived the $10 and gone on with the case. But he did not. As was his right, he treated the order as an entirety, and on that basis demanded the penalty, namely, the dismissal with costs. Clearly he cannot have both bond and penalty. Nor can he be permitted to enforce the bond for the very costs which followed the failure to file the instrument and pay the $10. As well might he, if the order had specified three sureties, obtain a dismissal with costs, because, on the bond filed, there were but two, and then proceed to collect such costs from the two.

The judgment must be affirméd, with costs.

Davis, P. J., concurred. Present — Davis, P. J., and Barrett, J.

Judgment affirmed, with costs.