We are of the opinion that section 3255 of the Code of
Civil Procedure limits the power of the court, on adjourning a trial, to requiring, as a condition, the payment of $10 costs, the fees of witnesses and taxable disbursements rendered ineffectual by the adjournment. See Hall v. Dwinell, 10 Wend. 628; Noxon v. Bentley, 6 How, Pr. 418; Hand v. Burrows, 15 Hun, 481. The sum imposed in this case was $50 for costs and expenses in preparing for trial. We cannot construe this as meaning $10 costs,-and $40 witnesses’ fees and taxable disbursements. That is plainly not the meaning. And we think that the court has no power to impose a gross sum as a qondition. Of course the parties may agree on what the witnesses’ fees and the taxable disbursements are. Otherwise they must be adjusted in the ordinary way.
We have no doubt that an appeal lies to this court if conditions of adjournment are imposed which are not legal. Nor is the right to such appeal waived by the fact that the aggrieved party, to prevent a dismissal of his complaint, has paid the illegal amount under protest. He could do no otherwise with safety to himself. As to the other, part of the order, viz., that it was on the understanding that no further application, etc., should be made,