Montgomery County NyArchives Court.....Eisenlord, John Vs. David Clum 1889
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Source: Reports Of Cases - New York
Written: 1889

Third Department, May Term, 1889.

JOHN H. EISENLORD, Appellant, v. DAVID H. CLUM, CATHARINE L. EISENLORD and 
Others, Respondents.

Stay of proceedings because of non-payment of costs — not applicable to costs on 
an appeal from an order granting a new trial — rights of a party entitled to 
costs, under section 779 of the Code of Civil Procedure, to a dismissal of the 
complaint.

The provisions of section 779 of the Code of Civil Procedure, to the effect 
that "where costs of a motion, or any other sum of money directed by an order to 
be paid," are not paid, subsequent proceedings shall be stayed, do not cover or 
apply to the costs of an appeal from an order granting a new trial on the merits.

A defendant, who has noticed a cause for trial, may bring it on for trial and 
take a dismissal of the complaint if the plaintiff is not ready to proceed; but 
where the plaintiff is ready and anxious to proceed, and the defendant, because 
of the failure of the plaintiff to pay certain costs awarded against him, 
insists that the plaintiff shall not proceed, he cannot, under such 
circumstances, take a dismissal of the complaint. All that he would be entitled 
to under such circumstances would be to a stay of proceedings.

Appeal by the plaintiff from an order, made at the Montgomery Circuit, and 
entered in the clerk's office of the county of Montgomery on April 9, 1889, 
dismissing the plaintiff's complaint.

The action was in ejectment, on a former trial of which a verdict had been 
rendered for the plaintiff, a motion by the defendants on the minutes for a new 
trial granted, and the verdict set aside. The plaintiff appealed to the General 
Term from such order granting a new trial, where the order was affirmed, with 
costs to the defendants. The case was noticed for trial by the defendants for 
the Montgomery Circuit, of February, 1889, at which counsel appeared on both 
sides, and the defendants' counsel, although the plaintiff's counsel was ready 
to proceed, objected to any proceedings being taken on the part of the plaintiff 
for the reason that the costs, awarded to the defendants on appeal to the 
General Term from the order granting a new trial in the action, had not been 
paid, and claiming that until such payment the proceedings on the part of the 
plaintiff were stayed under the provisions of section 779 of the Code of Civil 
Procedure. The court directed the entry of an order, dismissing the complaint, 
providing, however, that if the plaintiff should pay the costs on or before the 
following Thursday the dismissal should be set aside and the case be restored to 
the calendar.

A. J. Abbott, for the appellant.

D. S. Morrel, for the respondents.

By the Court:

Section 779 of the Code of Civil Procedure speaks of "costs of a, motion or any 
other sum of money." This language does not apply to the costs of an appeal from 
an order granting a new trial on the merits. The costs granted on such an appeal 
are not "costs of a motion or a sum of money directed by an order to be paid." 
Therefore, the Code did not stay plaintiff's proceedings in this case. Even if 
there had been a stay of plaintiff's proceedings under this section, still the 
defendants' practice was wrong. Under section 980, the defendants having noticed 
the cause, might bring it to trial and might take a dismissal of the complaint 
if the plaintiff was not ready to proceed. But here the plaintiff was ready and 
anxious to proceed, and the defendants insisted the plaintiff should not 
proceed; under such circumstances, it was unreasonable to permit defendants to 
take a dismissal of the complaint. If there had been some motion costs which 
remained unpaid, and the defendants had insisted on the benefit of section 779, 
all they should have had would have been a mere stay of proceedings. The 
defendants were blowing hot and blowing cold — insisting under their notice of 
trial that plaintiff should proceed, and under the non-payment of the costs that 
he should not.

The order is reversed, with ten dollars costs and printing disbursements.

Present — Learned, P. J., Landon and Ingalls, JJ.

Order reversed, with ten dollars costs and printing disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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