Dout v. Brooklyn Heights Railroad

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff while in the act of stepping upon one of the cars of the defendant, by the falling against him of the bridge used by the defendant in connection with the operation of its railroad. The case was set down for trial in the Municipal Court on the 14th day of November, 19G2. Upon defendant’s default an inquest was taken and judgment entered in the sum of one hundred dollars and costs. Upon motion of the defendant, an order was, on the 25th day of November, 1902, made by the justice who rendered the judgment, setting aside the inquest and vacating the judgment upon the payment of ten dollars costs and five dollars and twenty cents expenses. The case was again set down for trial on the 3d day of December, 1902. On that day plaintiff moved the case, defendant was not ready to proceed, plaintiff took another inquest, and the court rendered judgment in plaintiff’s favor for one hundred and five dollars and costs. Upon a second motion of the defendant an .order was made on the sixteenth day of December setting aside the inquest and vacating the judgment, upon condition that the defendant pay ten dollars costs to abide the event and pay to the clerk of the court the jury fee for summoning the new jury. The defendant paid that jury fee, and on the thirtieth day of December, the day on which the case was set down for trial by ■the order vacating the second default, the parties appeared, and, *620after the plaintiff had examined the jury and declared it satisfactory, and while additional talesmen were being summoned to take the place of jurors excused by the court, the plaintiff’s attorney objected to proceeding with the trial of the action for the reason that the defendant had failed to pay terms imposed by the order of November 25, 1902, opening defendant’s default. The court inquired .of defendant’s counsel why those costs had not been paid, who replied that he did not. think the defendant was compelled to pay the costs, but agreed to comply with any conditions the court might then impose. The court refused to impose any conditions, and held that, by reason of the failure of the defendant to comply with the order of November twenty-fifth, it was entitled to no further consideration from the court, which thereupon, directed that' an order be entered denying the motion to open the. first default, with costs and disbursements. • An order in writing was entered, on the 2d day of January, 1903, denying defendent’s motion to open the first' default, because of its failure to comply with the terms and conditions of the order of November twenty-fifth, and directing that the judgment of November fourteenth stand as taken and be re-estaba lished as of January 2, 1903. "

The defendant appeals from the judgment of November 14,1902, and likewise appeals from the order of January 2, 1903, denying the motion to open the default and directing that the judgment be re-established.

The defendant was, from the nature of the order, only entitled to enjoy the privilege of a trial after its first default upon complying with the terms of the order of November twenty-fifth, and had plaintiff pursued the ordinary course of refusing to proceed to another trial until such compliance, he might have enforced it. He has, in oiir opinion, waived his advantage under that order, and cannot now be heard to complain that the costs and disbursements have not been paid. With his eyes open, he deliberately .went to a trial of the merits of the controversy on the thirtieth day of December, and it was not until after that trial had been fairly begun that he raised the question of the non-payment of the costs.

Mattice v. Shelland (76 App. Div. 236) was a case where the plaintiff served a notice of trial while the proceedings of the defendant were stayed by virtue of the provisions of section 779 of the *621Code of Civil Procedure, relating to the non-payment of motion ■costs, and it was held that, at least to the extent of allowing the defendant to take part in the trial, the mere service of the notice of trial operated as a waiver of the stay. (Eisenlord v. Clum, 52 Hun, 461; Verplanck v. Kendall, 47 N. Y. Super. Ct. 513; Brown v. Griswold, 23 Hun, 618.) The doctrine that parties, at all times capable of waiving statutory or constitutional provisions made for their benefit, may, by appearing and omitting to object to the proceeding, waive a statutory requirement, not jurisdictional, finds :a strong application to the facts in the case at bar. (Phyfe v. Eimer, 45 N. Y. 102; Matter of Cooper, 93 id. 507; Embury v. Conner, 3 id. 511.) The true effect of plaintiff’s conduct was that he waived the advantages of the order by proceeding with the trial of his case, and after the trial had proceeded he could not recall what he had lost.

The judgment and order should be reversed, without costs in this court, and a new trial ordered, upon payment by the defendant of all the taxable costs and disbursements to date.

Goodeich, P. J., Babtlett, Hibsohbebg and Jenks, J J., concurred.

. Judgment and order of the Municipal Court reversed and new trial ■ordered, without costs, upon payment by the defendant of taxable costs and disbursements to date.