
    Alpheus M. Hinman, Resp’t, v. Robert T. Pierce et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    1. Security for costs—Dismissal of complaint for default in complying WITH ORDER DIRECTING.
    An order was obtained, on tbe application of the defendants, requiring the plaintiff to file security for costs, and upon his failure to comply with, the order, a motion was made, on behalf of the defendants, to dismiss his complaint. On the decision of that motion an order was entered reciting an order for a reference, in addition to the dismissal of the complaint, and for the appointment of a referee to take proof of the facts stated in the answer. It was then ordered that the motion be granted, with costs, unless the plaintiff, within twenty days, filed the security and paid the costs of this and another motion. The plair.tiff failed to file the security, and the defendants, upon that failure, and upon proof of service of the order, applied for a reference to take proof of the.counterclaims. The court denied that application, and from that denial an appeal was taken. Meld, that at the time the final appli. ation was made, the first order was not final and conclusive upon the court and did not deprive it of discrection upon the subject of the appointment of a referee.
    2. Same—Stay of proceedings—Effect of order staying plaintiff's PROCEEDINGS ON DEFENDANTS.
    
      Held, that the defendants having previously obtained an order staying all the plaintiff’s proceedings, and thus preventing him from replying to those alleged oounterclaims, the court would not allow the defendants to go on and offer proof of the counterclaims.
    3. Same—Failure to comply with order directing—Complaint may be DISMISSED—No FURTHER RELIEF, BEYOND RECOVERY OF COSTS, ALLOWABLE TO DEFENDANT—CODE CrV. PRO., § 3277.
    
      Held, that Code Civ. Pro., § 3277, had provided for the dismissal of the plaintiff’s complaint, when in default, for not complying with an order directing security for costs to be filed, but not for any further relief to the defendants beyond the recovery of costs.
    Appeal from so much of an order as denied an application made by the defendants for the appointment of a referee to take proof of the facts stated in the counterclaims set forth in the answer.
    
      Wales F. Severance, for app’lts ; H. Applinton, for resp’t.
   Daniels, J.

An order was obtained on the application of the defendants, requiring the plaintiff to file security for costs. He failed to do that, and the motion was thereupon made on behalf of the defendants to dismiss his complaint. .On the decision of that motion an order was entered, reciting an application for a reference in addition to the dismissal of the complaint and for the appointment of a referee, to take proof of the facts stated in the answer. It was then ordered that the motion should, be granted with costs, unless the plantiff within twenty days filed the security and paid the costs of this and another motion. The plaintiff failed to file the security, and the defendants upon that failure, and proof of service of the order, agroliet! for a reference to take proof of the counter-claims. 2!lO cmA denied tfept application, and it is from that denial that the appeal has been brought. To support it the position is taken that the first order was binding and conclusive upon the court at the time when the final application was made, and left it without discretion upon the subject of the appointment of the referee.

But it is very clear from the first order that it is not entitled to that effect. For if it had been the intention of the court at the time when that order was made, to provide for this reference, it would then have been so directed in the order, leaving no ground for mistake upon the subject. It was not so directed. But the right of . the defendants to such a reference was left open and wholly unaffected. And the question was accordingly presented upon the last hearing whether the court should make an order for a reference to take proof of the alleged counter-claims.

Such a direction would be very unjust. For the defendants had previously obtained an order staying all the plaintiff’s proceedings, and that prevented him from replying to these alleged counter-claims. And after obtaining and serving that order, no court with any sense of propriety, would allow the defendants to go on and prove alleged counterclaims, when by their own act it had been placed out of the power, as the- stay did, of the plaintiff to reply to these defenses. The more reasonable view to be adopted and followed would be, if the defendants insisted upon taking proof of and recovering their counterclaims, that by these acts, the stay would be vacated certainly so far as to permit the plaintiff to reply, and to litigate the right of the defendants to recover upon the issue framed in that manner. But to permit the defendants to put it out of the power of the plaintiff to reply, or litigate the counterclaims, and then to recover the amounts alleged to be owing, if anything was owing, upon them, would be arbitrary and unjust in the extreme.

The Code by section 3277 has provided for the dismissal of the plaintiff’s complaint where he may be in default for not complying with an order directing security for costs tobe filed. But it has not provided where such a dismissal may take place in an action of this description, for any relief to the defendants beyond the recovery of their costs. And it could not consistently be made broader, for the dismissal of the complaint as a matter of necessity would result in the dismissal of the action, of which it is the foundation. This is the theory of the section itself. For all which it has provided may be done, is the recovery of a judgment dismissing the complaint, and for costs in favor of the defendants. No further relief in this class of cases has been authorized or sanctioned by any provision contained in the Code, and the order should be affirmed, with ten dollars costs, and, also the disbursements.

Van Brunt, P. J., and Bartlett, J. concur.  