
    HAZARD v. WILSON.
    
      New York Common Pleas; Special Term and Chambers,
    
    October, 1877.
    AIotioss ahd Orders.—Judge.—Costs.—Stay by Hon-payment,
    In an action in the Hew York common pleas, an ex parte order such as might be made by a judge out of court, is valid and must be obeyed, even though entitled in the supreme court, and made by a judge of that court. _
    Where an order requires payment of costs absolutely, though without fixing anytime for payment, they must be paid before the party ■charged with them can take further proceedings in the cause.
    Edward C. Hazard, Frank Creen and Albert J. Smith, sued William S. A. Wilson and John Armstrong, in the New Tork common pleas, on a promissory note. The action was commenced by service of summons and complaint, on September 1, 1877, on the defendant, John Armstrong.
    On September 20, 1877, the last day to answer, in the absence from New York of Thomas Proctor, attorney for defendant Armstrong, said Armstrong by mistake informed a clerk in the office of his attorney, that this, action was in the supreme court, and acting on this information the clerk obtained from the supreme -court an order, entitled in that court, extending Armstrong’s time to answer, ten days.
    On the 29th, the last day, Mr. Proctor, the attorney, served Armstrong’s answer on the managing clerk of the plaintiff’s, attorney, and the clerk received it, .and gave admission of “due service.”
    Without returning this answer, the plaintiff’s attorney entered judgment, on October 4th, against the defendants, as by default for want of an answer. Armstrong’s attorney then took an order to show cause why the judgment should not be vacated.
    
      Thomas Proctor, for the motion.
    The judgment is irregular, because, 1. The answer, if regarded as a nullity, should have been immediately returned ; 2. The plaintiffs were concluded by their said admission of “due service.”
    
    
      Hugh Porter, for plaintiffs, in opposition,
    Contended that the order of the supreme court was a nullity.
    
      
       In a case in the supreme court first department, chambers, it was held, at about the same time, that after giving admission of due service of an order to show cause, the attorney could not insist on the dismissal of the motion on the ground that the order to show cause did not expressly direct that less than eight days’ service should be sufficient, as required by section 780 of the Code of Civil Procedure. Anon. (Westbrook, J.). Compare as to the effect of such a defect, Thompson v. Erie Rw. Co., 9 Abb. Pr. (N. S.) 233; Bates v. Jaines, 1 Duer, 668; Rogers v. McElhone, 12 Abb. Pr. 292; Main v. Pope, 16 How. Pr. 271; Hoyt v. Campbell, Col. & C. Cas. 129.
    
    
      
       Section 315 of the Code of Procedure, which is not expressly repealed, provides, as to costs of motion, that “ if absolute and not paid within ten days after service of a copy of the order directing the payment thereof, all proceedings in the action on the part of the party or parties so in default shall be stayed without further order of tine court until the same are paid.”
    
    
      
       Section 779 of the Code of Civil Procedure provides that “where costs of a motion, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within ten days after service of a copy of the order, all proceedings on the part of the party required to pay them are stayed, without further direction of the court, until the payment thereof. But the adverse party may, at his election,- waive the stay of proceedings. ”
    
    
      
       See also section 772 of the Code of Civil Procedure. Actions in the marine court are excepted from such provisions (§ 327); and orders, vacating provisional remedies are subject to other regulations (§ 772).
    
   Robinson, J.

[Orally.]—The order is valid. The judges of' this court have the power under section 354 of the Code of Civil Procedure, to grant such an order in a case brought in the supreme court, and a justice of. the supreme court has the like power in a case brought in this court, and this construction is supported by the decision In re Morgan, 56 N. Y. 629. The error in the title of the papers may be disregarded.

Plaintiffs’ attorney, without paying the costs required by the order entered on the above decision, immediately obtained an order to show cause, returnable-in less than ten days after the order was made, requiring defendant to show cause why the answer should not be struck out as frivolous.

Defendants’ attorney meanwhile obtained an order-requiring plaintiff to show cause why he should not have leave to amend his answer; and he returned to-plaintiffs’ attorney the order to show. cause why it should not be struck out as frivolous, with the objection that the proceeding was irregular, for the reason that the costs of the prior motion were unpaid. The-subject of both orders to show cause were discussed together.

Thomas Proctor, for defendants,

Insisted that the plaintiffs’ proceedings were absolutely stayed from the time the order granting costs was made, until the costs should be paid (citing Code of Pro. § 315; Code of Civ. Pro. § 779; Thaule v. Frost, 1 Abb. New Cas. 298).

The motion to set aside the judgment as against the defendant Armstrong granted, with $10 costs ; and leave was given to Armstrong to defend, his answer so-served to stand as the answer.

Hugh Porter, for plaintiff.

Robinson, J.

Held, that the costs not having been paid, plaintiff was stayed absolutely from the time of the service of the order until payment; and that the plaintiff’s motion was therefore irregular; and .granted defendant’s motion for leave to amend, and without costs to either party as against the other.  