Foley v. Rathborne

Davis, P. J.:

It is claimed that tlie costs in this case have accrued in a special proceeding and not in an action, and, that under section 311 of the Code they should bo adjusted before a judge or court, or in such other manner as the judge or court should direct. Assuming this position to be entirely correct, yet the order of readjustment made by Mr. Justice Barret, and the readjustment by the clerk in pursuance of that order were a sufficient compliance with section 311. The denial of the motion by Mr. Justice Gilbert for a readjustment was entirely proper and should be affirmed, with ten dollars costs and disbursements of this appeal to be adjusted by the clerk.

The second appeal contained in the same papers is from an order staying the proceedings on the part of the appellant until he shall have paid costs that have accrued from time to time therein. It appears that costs had accrued in favor of Wetmore, the respondent herein, amounting to about $230 which the appellant had declined to pay, while he continued to make divers other motions against Wetmore. The court, on Wetmore’s motion, ordered that the plaintiff’s proceedings be stayed until the payment of the costs already accrued and allowed.

This was not a statutory stay of proceedings under section 315 of the former Code, but an order made by the court in the exercise of its discretion to stay vexatious and annoying proceedings until the party pursuing them should have paid the costs already accrued. It was in this case an eminently proper one, and not only has abundant authority for its support, but is fully justified by the facts appearing in the case. (Dresser v. Brooks, 5 How. Pr., 75 ; Adams v. Bush, 2 Abb. [N. S.], 116 ; Hill v. Grant, 2 Sup. Court [T. & C.], 469 ; Kentish v. Tatham, 6 Hill, 372; Thaule v. Frost, 1 Abb. [N. C.], 298.)

The appeal should be dismissed with ten dollars costs and disbursements to be adjusted by the clerk.

Brady, J. concurred. Present — Davis, P. J., Bradley and Daniels, JJ.

Order affirmed with ton dollars costs and disbursements; appeal dismissed with ten dollars costs and disbursements.