Whitehead & Hoag Co. v. Ange S. Arbig, Inc.

150 Misc. 567, 269 N.Y.S. 659, 1933 N.Y. Misc. LEXIS 1788

Opinion

Ryan, J.

Counsel for defendant has submitted an order to restore the above-entitled cause to the day calendar and seeks to have the court impose taxable costs to date as against the plaintiff on the authority of Rawson v. Silo (105 App. Div. 278). The facts in the case cited bear no analogy to those involved in the instant case. In Rawson v. Silo the court had ruled that the complaint was insufficient and permitted the withdrawal of a juror so that the plaintiff for his own benefit might make such application to amend his pleading as he might be advised. In the instant case the plaintiff had rested and defendant moved to dismiss the complaint. Argument on that motion was deferred pending the taking of testimony of a witness from without the city. In the meantime counsel for the plaintiff was taken ill and confined to his bed as was disclosed by the affidavit of his attending physician. A mistrial was duly declared. It cannot be said that the mistrial was for the benefit of the plaintiff; on the contrary, the cause was an unforeseen occurrence by reason of which the plaintiff was unavoidably prevented from continuing the trial before the end of the term. To award costs against the plaintiff under those circumstances would be contrary to the exercise of that sound discretion having due regard to the rights and interests of others.

Submit order on notice to restore the cause to the calendar of Trial Term, Part II, for Friday, June 16, 1933, excluding the provision imposing costs.