
    Pearl Van, Respondent, v. George Madden, Appellant.
    Third Department,
    November 10, 1909.
    Costs — putting cause over term — service of order by mail — extension of time for payment — construction of order allowing costs on two contemporaneous motions.
    Where an order putting a cause over the term on the condition that the defendant pay ten dollars costs to' the plaintiff within twenty days after service of the order, otherwise the plaintiff to enter an order striking out the answer, was served by mail, the defendant has forty days within which to pay the costs, and an order striking out his answer entered before the expiration of that time is premature.
    Where the order aforesaid also charged the defendant with ten dollars costs on the denial of a contemporaneous motion for judgment on a counterclaim, the provision allowing the plaintiff to strike out the answer on a failure to pay costs will be construed to relate only to the costs allowed for moving the case over the term, and not to the costs on the denial of the defendant’s motion for judgment, which latter are ordinary motion costs, to be collected in the manner provided by law.
    Appeal by the defendant, George Madden, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 1st day of May, 1909, denying his motion to vacate an order theretofore made and entered herein without notice, striking out the defendant’s answer.
    N. Frank, O’Reilly, for the appellant.
    
      William H. Bass [Clarence W. Smith, of counsel], for the respondent.
   Kellogg, J.:

At the Fulton County Trial Term this case was upon the calendar, and the defendant’s motion for judgment upon his counterclaim was denied, with ten dollars costs. The plaintiff moved the case for trial, and thereupon the defendant moved to put it over the term, which motion was granted, with ten dollars costs to the plaintiff. One order covered both matters, and concluded as follows: “ It is further ordered that the said costs herein be paid to the plaintiff or his attorney within twenty days after the entry and service of this order, as a condition for granting the relief herein allowed, and in case said costs are not paid within the said twenty days, plaintiff may enter an order striking out the defendant’s answer herein.” This order was served by mail February 4, 1909; on the twenty-sixth of February defendant’s attorney mailed the plaintiff’s attorney his check in which it was stated “ Motion costs Van v. Madden sending case over Trial Term,” and in the letter inclosing the check he says he incloses the ten dollars allowed as a condition for sending the case over the term, inclosing in said letter a notice of appeal from that part of the order denying his motion for judgment on the counterclaim. March first plaintiff’s attorney replied : “I received your letter Saturday night containing check for ten dollars, said check providing that it be in settlement for motion costs in the above matter sending case over Trial Term. It bears date of Feby. 27th and not numbered.” He indorsed, used and collected the check, and in the same envelope inclosed a Special Term order, made without notice, striking out the defendant’s answer. From an order refusing to vacate that order this appeal is taken.

The original order having been served by mail, the defendant had forty days’ time in which to pay the costs imposed upon him as a condition for putting the case over the term. (Code Civ. Proc. § 798.) The order striking out the answer was, therefore, prematurely granted.

The correspondence and the check show that both the plaintiff’s and defendant’s attorneys interpreted the order as requiring a payment of ten dollars on account of the case going over the Trial Term, and that is not an unreasonable interpretation of the order. The ten dollars costs of the motion for judgment upon the counterclaim were ordinary motion costs, the collection of which is adequately provided for by law. The term fee for putting the case over the term was a payment then due and which was required to make the order effectual. A credit of twenty days was given for the payment, and to protect the rights of the plaintiff in case of non-payment, and substantially to restore him in the position in which he was at the time the case was ordered over the term, . defendant’s answer was to be dismissed in case he failed to pay such term fee. The provision of the order is highly penal, and should be strictly construed, and in view of the construction evidently placed upon it by the parties, there is no difficulty in saying that the condition in the order applies only to the payment of the term fee. The order appealed from should, therefore, he reversed, with ten dollars costs and printing disbursements, and the motion to vacate the order striking out the defendant’s answer should be granted, with ten.dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vácate order striking out defendant’s answer granted, with ten dollars costs.  