Opinion
May Term, 1899.
H.S. Haff, for the appellant.
John H. Booth, for the respondent.
As a matter of fact the costs in the Justice's Court in this case were not paid, and their payment is necessary to perfect an appeal. ( Kenney v. Livery Stable Keepers' Assn., 89 Hun, 190.)
The circumstances, however, are such that it seems to me the County Court might well have permitted that to have been done, nunc pro tunc, under section 3049 of the Code of Civil Procedure. It has, however, declined to do so. It was a matter resting in its discretion, and there is a long line of authorities holding that we have not the right to review that exercise of discretion. ( Tucker v. Pfau, 70 Hun, 59; Wright v. Chase, 77 id. 90; Myers v. Riley, 36 id. 20; Thomas v. Keeler, 52 id. 318; Bantleon v. Meier, 81 id. 162; People v. Young, 92 id. 373, 377; National Wall Paper Co. v. Szerlip, 9 App. Div. 206; Judson v. O'Connell, 37 N.Y. St. Repr. 581; Sexton v. Bennett, 43 id. 85.)
The only case that I have been able to find where the discretion of the County Court was overruled upon appeal is the case of Gutbrecht v. Pros. Park C.I.R.R. Co. (28 Hun, 497).
There would seem to be no alternative, therefore, but to dismiss the appeal.
All concurred.
Appeal dismissed, with ten dollars costs and disoursements.