
    Louis Goldman, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    December 30, 1908.
    Court — Municipal Court, city of New York — failure to pay costs — stay — appeal from judgment by default — motion to open default denied.
    The Municipal Court of the city of New York has no power to stay the proceedings in an action because of a failure to pay costs awarded on the dismissal of a former action for the same cause.
    An appeal does not lie from the judgment of said court taken by default.
    Where a defendant in said court allows an inquest to be ¡alten because of the denial of a motion to stay proceedings on the ground that the plaintiff has failed to pay the costs on the dismissal of a former action for the same cause, the default will not be opened,
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from an order of the Municipal Court of the city of Hew York, denying the defendant’s motion to open its default and the inquest taken thereupon and to set aside the judgment entered thereon, and also from such judgment in favor of the plaintiff, rendered on the 13th day of April, 1908.
    
      Francis R. Stoddard, Jr., for the appellant.
    
      Gilbert Ray Hawes, for the respondent.
   Rich, J.:

When the case was called for issue on November 7,1907, defendant's attorney filed an affidavit alleging non-payment of the costs of a former action between the parties for the same cause, in which the complaint was dismissed, and asked that further proceedings be stayed until the payment of such costs. Counsel differ as to whether the court granted or denied this motion, but it is conceded that no order was entered or'signed making any disposition of it. On April 13, 1908, the action was reached for trial before another justice. Upon the call of the calendar the plaintiff answered “ready,” and counsel for the defendant, as the return shows, “ moved for a stay on the ground of failure on the part of plaintiff or his counsel to pay costs of former action. Plaintiff’s counsel states in open court that such motion was made at a 'prior time before another justice and said motion was denied.” Defendant’s motion was denied and the case sent for trial to the justice presiding in Part 2 of said court, where an inquest was taken, and thejudgment appealed from accordingly entered.

There was no power in the Municipal Court to stay the proceedings in this action until the payment of the costs of the former action (McKown v. Oppenheimer, 60 Misc. Rep. 98; 111 N. Y. Supp, 609), and an appeal does not lie from the judgment. (Schwartz v. Mutual Alliance Trust Co., Id. 610.) We are of the opinion that the motion to open the default and vacate the inquest was properly denied. (Warth v. Moore Blind Stitcher & Overseamer Co., 125 App. Div. 211; 109 N. Y. Supp. 116.) The contention that the action is for an assault and battery, of which the Municipal Court had no jurisdiction, is without merit (Hines v. Dry Dock, E. B. & B. R. R. Co., 75 App. Div. 391.)

The judgment and order must he affirmed, with costs.

Woodward, Jenks, Hooker and Gaynor, JJ., concurred.

Judgment and order of the Municipal Court affirmed, with costs.  