Hewett v. Cook

Full title: HARRY A. HEWETT, Appellant, v . PHILO B. COOK, Respondent

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Sep 1, 1902

75 App. Div. 239 (N.Y. App. Div. 1902)

78 N.Y.S. 2

Opinion

September Term, 1902.

T.B. Merchant and L.M. Merchant, for the appellant.

C.H. Hitchcock, for the respondent.

CHASE, J.:

When a party to an action asks a favor the court, as a condition of granting the favor, may impose any reasonable terms. The terms being known, the party asking the favor may refuse to accept the favor on the terms imposed, or he may accept the favor, in which case he is bound to comply with the conditions.

Costs of a term imposed as a condition of the postponement of a trial are payable immediately. If the costs are not paid immediately the party desiring to proceed with the trial may do so at once. When a party not only asks to have the trial of the action postponed, but also asks for time to pay the costs imposed as a condition of the postponement, it is not uncommon practice to grant such further favor on condition that if the costs are not paid within the time specified, the complaint shall be dismissed or the answer stricken out as the case may be, on proof of the default.

In this case the plaintiff did not ask for time in which to pay the costs imposed upon him and the defendant did not insist upon the costs being paid immediately as he could have done if he had desired. No condition relating to the future payment of the costs was imposed by the court or accepted by the plaintiff. Whether the plaintiff would have accepted a further condition relating to the non-payment of costs does not appear. Section 779 of the Code of Civil Procedure provides how motion costs shall be collected. The orders on which the judgment herein is based were made not as a condition for a favor asked by the plaintiff, but they were made months after the Trial Term at which the trial was postponed and after both parties had again noticed the case for trial.

They constitute an unusual and unauthorized way of collecting motion costs.

Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs, and the judgment set aside and vacated.

All concurred, except FURSMAN, J., dissenting.

Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs, and the judgment vacated.