
    Benjamin Cohen, an Infant, Etc., Appellant, v. Rebecca Meryesh et al., Respondents.
    Appeal from an order of the City Court of the city of New York.
    Abraham H. Sarasohn, for applellant.
    Johnston & Johnston (Edward W. S. Johnston, of counsel), for respondents.
   Soott, J.

On March 15, 1905, plaintiff’s action was dismissed by default. A motion was made to open the default which was granted without terms. On appeal to this court the latter order was modified by inserting, as a condition of opening the default, that plaintiff should pay certain costs, within six days after service of a copy of the order upon his attorney. The plaintiff did not comply, or offer to comply, with the condition within the time limited, and the defendants thereupon became entitled to enter judgment upon, the dismissal in the previous March. It now appears that the plaintiff sues in forma pauperis, under an order made in April, 1904. That fact was apparently not disclosed on the former appeal; but that fact is of no consequence, as the court may, in its discretion, impose costs as the condition of granting a favor to a litigant, even though he be suing as a poor person. The order permitting plaintiff to sue as a poor person was granted ex parte. A motion to vacate it was denied and no appeal was taken, although there were many apparent defects in the affidavit sustaining it. The order denying the motion to vacate contained a clause permitting the motion to be renewed upon proof that the plaintiff had no meritorious cause of action, or that he is of sufficient financial means and ability to prosecute the action without the aid of the order. No advantage was taken of this leave, however, until after plaintiff, by failing to comply with the terms contained in the order of this court, had placed defendant in a position to enter judgment. Then, upon defendant’s motion, the court below made the order now appealed from. That order vacated the order permitting plaintiff to sue as a poor person, directed the clerk to enter judgment dismissing the complaint, upon the judgment of dismissal of March 15, 1905, and for costs of the action to be taxed. We think that the motion upon which this order was made, in so far as it asked that the order permitting plaintiff to sue as a poor person be vacated, came too late. It is true that leave had been given to renew, but this meant to renew during the pendency of the action. At the time the motion was made, the action was, to all intents and purposes, ended. All that remained to be done was to enter a formal judgment. Even if it may be said that the court below had it within its discretion to entertain the motion at any time before judgment was actually entered, we are of opinion that such discretion was not well exercised in the present case. Strictly speaking, it may not have been necessary to apply to the court for leave to enter judgment after the plaintiff had failed to comply with the conditions upon which his default was opened; but the practice of making such a motion is not "to be discouraged, because it gives the party against whom the judgment is to be entered an opportunity to show, if he can, that he has complied, or tendered compliance, with the terms imposed upon him. The order appealed from will, therefore, be modified by striking out so much thereof as vacates the order of April 30, 1904, granting leave to plaintiff to prosecute this action as a poor person, and by striking out the provision that defendants may have judgment for the costs of the action, and inserting in place thereof a provision that defendants have judgment dismissing the complaint and for the costs and disbursements of the former appeal to this court as taxed; and, as so modified, the order now appealed from will be affirmed, without costs.

Gtldebsleeve, J., concurs; MacLean, J., taking no part.

Order affirmed, without costs.  