Hazard v. Wilson , 3 Abb. N. Cas. 50 ( 1877 )

Robinson, J.

[Orally.]—The order is valid. The judges of' this court have the power under section 354 of the Code of Civil Procedure, to grant such an order in a case brought in the supreme court, and a justice of. the supreme court has the like power in a case brought in this court, and this construction is supported by the decision In re Morgan, 56 N. Y. 629.^* The error in the title of the papers may be disregarded.

Plaintiffs’ attorney, without paying the costs required by the order entered on the above decision, immediately obtained an order to show cause, returnable-in less than ten days after the order was made, requiring defendant to show cause why the answer should not be struck out as frivolous.

Defendants’ attorney meanwhile obtained an order-requiring plaintiff to show cause why he should not have leave to amend his answer; and he returned to-plaintiffs’ attorney the order to show. cause why it should not be struck out as frivolous, with the objection that the proceeding was irregular, for the reason that the costs of the prior motion were unpaid. The-subject of both orders to show cause were discussed together.

Thomas Proctor, for defendants,

Insisted that the plaintiffs’ proceedings were absolutely stayed from the time the order granting costs was made, until the costs should be paid (citing Code of Pro. § 315;^† Code of Civ. Pro. § 779;^* Thaule v. Frost, 1 Abb. New Cas. 298).

The motion to set aside the judgment as against the defendant Armstrong granted, with $10 costs ; and leave was given to Armstrong to defend, his answer so-served to stand as the answer.

Hugh Porter, for plaintiff.

Robinson, J.

Held, that the costs not having been paid, plaintiff was stayed absolutely from the time of the service of the order until payment; and that the plaintiff’s motion was therefore irregular; and .granted defendant’s motion for leave to amend, and without costs to either party as against the other.