Gross v. Gorsch

After several adjournments had in this case the parties met for trial on October 15, 1907, and upon plaintiff’s request, the case was again adjourned until October 21, 1907, the court imposing the sum of ten dollars costs upon the plaintiff. Upon October 21, 1907, when the case was reached upon the call of the calendar, the defendant stated to the court, that the ten dollars costs, theretofore imposed, had not been paid. Thereupon the court dismissed the complaint for nonpayment of such costs and judgment was entered against the plaintiff, from which judgment he appeals. The dismissal of the complaint, for nonpayment of costs was error. There is no provision of the Municipal Court Act which authorizes the court to dismiss an action for the nonpayment of costs, imposed as a condition for granting an adjournment, and section 779 of the Code of Civil Procedure, which directs a stay if such costs are not paid, is not applicable to Municipal Courts. Code Civ. Pro., § 3347. The remedy is for the party awarded such costs to add them to the judgment, if successful,' or to off-set them against the judgment obtained by the other party. Farber v. *650Flauman, 30 Misc. Rep. 627. The court was therefore wrong in dismissing the complaint. Fallon v. Orocicchia, 52 Mise Rep. 503. The respondent admits in his brief that the court was without jurisdiction to dismiss the action foi failure to pay the costs, but urges that such dismissal was also based upon the plaintiff’s failure “ to proceed with the action ” when the same was called for trial. This court is bound by the record as it is filed. Eisenbud v. Gellert, 26 Misc. Rep. 367; Forman v. N. Y. Transportation Co., 59 N. Y. Supp. 581. The return herein contains nothing in support of the respondent’s contention. If the return is defective in material respects, this court is always open for a motion to amend the same, and it is the duty of both the appellant and respondent to promptly examine it, as soon as filed, for the purpose of ascertaining defects therein. Bevins & Rogers App. Term Pr. 46.

McCall, J., concurs; Ford, J., concurs in result.

Judgment reversed and new trial ordered, with costs to appellant to abide event.