Walter v. Henry L. Doherty & Co.

244 A.D. 751

Opinion

Order granting defendants’ motion for judgment on the pleadings affirmed, with ten dollars costs and disbursements. Judgment dismissing the complaint for failure to pay taxable costs reversed on the law and as a matter of discretion (Civ. Prac. Act, §§ 283, 496), with leave to plaintiffs to serve an amended complaint within ten days on payment of costs and the costs of this appeal. The plaintiffs were entitled to review the order by an appeal therefrom without being compelled to amend at once and pay costs, in default of which, judgment was to be entered against them. Had they accepted the terms of the order they would have lost the right to appeal. Hagarty, Tompkins, Davis and Johnston, JJ., concur; Lazansky, P. J., dissents, being of the opinion that the complaint states facts sufficient to constitute a canse of action.