
    Kennedy v. Wood et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    September 21, 1889.)
    1. Continuance—Conditions—Costs.
    Under Code Civil Proc. N. T. § 3255, providing that it may be required as a condition before granting an adjournment of a trial that the adverse party shall be paid “a sum not exceeding $10, * * * besides the fees of his witnesses, and other taxable disbursements, already made or incurred, which are rendered ineffectual by the adjournment, ” the court has no power to impose payment of a gross sum, as $50 “for costs and expenses, ” as a condition.
    2. Same—Appeal.
    Where illegal conditions of adjournment are imposed, an appeal lies, and the right thereto is not waived by payment of the illegal amount under protest.
    Appeal from special term, Rensselaer county.
    Application by William S. Kennedy, as receiver, for a postponement of the trial of a cause against Jacob C. Wood and others. Code Civil Proc. N. T. § 3255, providing for costs upon adjournment of trial, recites: “Where an application is made to a court or a referee to adjourn a trial, the payment to the adverse party of a sum not exceeding ten dollars, * * * besides the fees of his witnesses, and other taxable disbursements, already made or" incurred, which are rendered ineffectual by the adjournment, may be required as a condition of granting the adjournment.” The court ordered the postponement, Aand directed plaintiff to pay to defendant’s attorneys the sum of $50, as a condition, to indemnify defendants for their costs and expenses in preparing for trial. Plaintiff appeals.
    Argued before Learned, P. J., and Fish and Putnam, JJ.
    
      Charles *I. Baker, (Henry A. King, of counsel,) for appellant. King & Rhodes, (Charles'H. Patterson, of counsel,) for respondent.
   Learned, P. J.

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, we do not know from the language whether this was not an agreement volunteered by the plaintiff’s counsel to induce the adjournment. The language is not so clear as to put this beyond question. The order must be modified so that the condition shall be on the payment of $10 costs, and of fees of witnesses and other taxable disbursements made or incurred which are rendered ineffectual by the adjournment. ■ On the adjustment of these witnesses’ fees and taxable disbursements the defendants must repay any part of the $50 in excess of the sum thus allowed. Ho costs of this appeal to either party.  