Hickson v. Merbel Realty Corp.

This is an action for personal injuries alleged to have been sustained by the infant plaintiff, Joseph Hickson, and also by the plaintiff, Gladys Hickson. A previous action brought by the same parties against the same defendant for the same causes of action was dismissed upon the call of the Trial Calendar by reason of plaintiffs’ failure to appear on April 1, 1957. The present action was commenced November 2, 1957. By stipulation, defendant’s time to answer or make any motion. with respect to the complaint in this action, was extended to November 18,1957. On the 15th of November, 1957, *1016the defendant served and filed its answer in this action consisting of a general denial together with a demand for a bill of particulars. On January 1, 1958, plaintiffs served a bill of particulars in response to the said demand and also a notice of trial. Thereafter, and on January 24, 1958, the defendant caused a judgment for costs, for the sum of $76, to be entered by the clerk of the court in the first action and a copy of that judgment, with notice of entry, was served on that day upon the attorney for the plaintiffs. Thereafter, and on February 20, 1958, the defendant brought this motion for a stay of proceedings in the present, subsequent action by reason of the failure of the plaintiffs to pay the said judgment for costs entered in the first action.

The motion is denied. Defendant’s application is governed by section 125 of the New York City Municipal Court Code (see Rosenberg v. Abraham, 97 Misc. 425). However, the Appellate Term has construed section 125 of the Municipal Court Code in accordance with Supreme Court practice under section 1520, Civil Practice Act, to the extent of holding in Callara v. Sokol (33 N. Y. S. 2d 68) that defendant waives its right to a stay “ by taking affirmative steps in the action prior to the bringing of this motion ” (p. 69, citing Rollins v. Carib Syndicate, Ltd., 172 Misc. 648, affd. Appeal No. 2, 258 App. Div. 816). The previous action was dismissed by reason of plaintiffs’ failure to appear upon the call of the calendar for trial on April 1, 1957. The present action was commenced November 2, 1957. The defendant obtained an extension of time to answer or make any motion with relation to the complaint in this action. Thereafter, defendant made no motion with relation to the complaint but served and filed an answer consisting of a general denial together with a demand for a bill of particulars. Subsequently, defendant received and returned plaintiffs’ bill of particulars and notice of trial. No motion was made by defendant nor were the bill of particulars and notice of trial rejected. No move had previously been made by defendant to enter judgment for costs in the first action. On January 24, 1958, 23 days after the notice of trial in the present action had been served and filed and after the case had been placed upon the calendar, defendant caused judgment for costs to be entered in the first action. The present motion for stay of proceedings in the action was not brought until February 20, 1958. This case is on the Trial Calendar of this court on March 18,1958.

In view of all the aforestated, the court is of the opinion that the defendant has waived its right to a stay of proceedings. (Cf. Rollins v. Carib Syndicate, Ltd., supra.)