Bien v. National Surety Co. , 159 N.Y.S. 194 ( 1916 )

Guy, J.

The facts in this case are not disputed and it involves a question of practice only. The action was brought to trial and it seems the only material question was one of law. The case was submitted and the trial justice reserved his decision.

Before a decision was rendered the plaintiff asked leave to discontinue the action and the trial justice made and signed an order, the material portion of which reads as follows: ‘1 Upon the foregoing papers this motion is granted and the plaintiff is allowed to discontinue upon payment of taxable costs.” The summons was also indorsed “ Discontinued on payment of taxable costs. March 11th, 1916.”

This order was entered on the day it bore date and the clerk thereupon entered in the docket book kept by him the following:

“ 1916 Mch. 11 Discontinued on motion of pltf.

$20. costs. Trial fee paid. See memo.

“ “ 15 Disbursements, tax and allowed

$8,00.”

By motion made by the plaintiff and returnable on April 11,1916, the court below made an order “ Striking out the taxation of $8.00 disbursements and re-taxing bill accordingly. ”' The clerk thereupon made this entry in the docket:

“ 1916 Apr. 11 Disbursements retaxed disallowing the $8. disbursements as taxed by Clerk.”

This is all that appears in the record before us.

Characterizing these entries as a“ judgment ” the defendant appeals therefrom and seeks a review of the last-mentioned order which strikes out the clerk’s allowance- of disbursements from the bill of costs.

The plaintiff moves to dismiss the appeal upon the ground that no judgment as yet has ever been entered.

In this position we think the plaintiff is correct. The order granting leave to discontinue was upon condition that plaintiff pay the taxable costs. Upon such an order no judgment can be entered. Hyde v. Anderson, 112 App. Div. 76.

“ Motion to discontinue is properly for leave to discontinue, and the proper order thereon is one allowing a discontinuance on payment of costs, if such terms are imposed. If plaintiff fails thereafter to take proper steps or proceed in the action, defendant’s remedy is by motion to dismiss the complaint for want of prosecution. There is no authority for entering a judgment.” Hyde v. Anderson, supra; Anderson v. Norton, 158 N. Y. Supp. 152.

Under the terms of the order in the present case, the defendant undoubtedly had a right to tax his costs, leaving the plaintiff to pay such costs or refuse to proceed when a proper judgment of dismissal could be entered, the costs taxed thereunder and a review had by the court below or upon appeal by the aggrieved party. The entries in the docket book do not constitute a judgment. The clerk is a mere ministerial officer and can only act upon the direction of the court. He was given no authority to enter a judgment and his entries were merely in the routine of his duty to keep a record of the proceedings. He cannot enter a judgment of his own motion. He must have either oral or written directions from the justice who tried the case. Collins v. Davis, 114 N. Y. Supp. 792. Indorsement of the decision of the trial justice on the papers in the case is not rendering judgment. Dalton v. Loughlin, 4 Abb. N. C. 187; Collins v. Davis, supra. See also Code Civ. Pro., § 1236.

Bijub and Cohalan, JJ., concur.

Appeal dismissed, with ten dollars costs.