
    John McCormick, Appellant, v. Thomas J. Shea and Annie A. Shea, Respondents.
    (Supreme Court, Appellate Term,
    January, 1904.)
    Mistrial — For disorderly behavior, in court, of the plaintiff's attorney — Costs cannot be awarded against his client.
    The City Court of the city of New York may properly declare a mistrial in an action and order it to the foot of the calendar where the plaintiff’s attorney conducts himself upon the trial in a manner against the dignity of the court and prejudicial to the interests of the defendants.
    Costs are, however, not authorized by any statute and in any event should not be imposed upon the client as he should not be fined for the willful misconduct of his attorney.
    Appeal from orders of the City Court of the city of Hew York.
    . David Bernstein, for appellant.
    Eranklin Bien, for respondents."
   Per Ouriam.

This cause was on the short cause calendar, and was sent to Part 4 of the Ctity Court for trial.

The first order appealed from recites that the court warned plaintiff’s attorney several times to conduct the trial in a proper and orderly manner, hut that the said attorney refused to do so, and continued to conduct the trial in a manner prejudicial to the interests of the defendants, as well as against the dignity of the court, whereupon the court, on its own motion, ordered the cause to the foot of the calendar, and imposed thirty dollars costs on plaintiff. The latter made a motion to resettle this order by stating that this action of the court was based upon the stenographer’s minutes, as well as on its own motion, and also asked for such other and further relief as might be just and proper. This motion was denied, and plaintiff has appealed both from the order denying the motion to resettle, and from the original order itself.

The record does not disclose the particulars of the alleged misbehavior of the plaintiff’s attorney. Whether or not the stenographer’s minutes would have thrown light on the subject we do not know. The court below, however, must have known whether or not the minutes would have shown the acts, words or gestures of the attorney which caused the court to declare a mistrial, and, as the justice denied the application for resettlement, the presumption is that the decision of the court was not based on the minutes. The court is within its authority to declare a mistrial, where the behavior'of the plaintiff’s attorney renders it improper to continue the trial with the result that the cause is sent to the foot of the calendar.

So far as the imposition of costs is concerned, however, the court, we think, fell into error. If these costs were in the nature of a penalty the order does not so indicate, and, in any event, the client should not be fined for the willful misconduct of his attorney. Costs are the creature of the statute, and can only be imposed in cases authorized by the statute. Cassidy v. McFarland, 139 N. Y. 201-208. We know of no authority which empowers the court to grant such costs in the case at bar. Whether the mistrial is caused by thé misconduct of the attorney, or by the failure of the parties to finish the trial within the time fixed by the rules of the Oity Court in such cases, the principle is the same in respect to the costs, and this case comes within the doctrine laid down in Barry v. Winkle, 36 Mise. Rep. 171, where the Appellate Term held that in a case where the trial is not completed within the time limit, and is consequently sent to the foot of the calendar, no costs should he imposed.

The original order may be modified by striking out the costs. With this modification both orders are affirmed, without costs of appeal to either party.

Present: Ebeedman, P. J., Gildeesleeve and Gbeenbaum, JJ.

Orders affirmed, without costs to either party.  