
    Thomas Eppoletto, Respondent, v. Charles Zuhr and William Steffen, Appellants.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Municipal Courts — Procedure: Discontinuance: Relief from default — Conditions.
    The Municipal Court of the city of New York has no power to order the discontinuance of an action without costs.
    A verbal understanding between counsel that the case should not be proceeded with until defendant’s attorney could attend the call of the calendar in another court is subject to the disposition of the case as directed by the trial judge who may insist on the action being tried when reached.
    Where the action was for rent under a written lease and judgment in plaintiff’s favor was taken by default in violation of such understanding between counsel, the court may, as a condition of opening the default, require the defendant either to deposit the amount of the judgment or give an undertaking, as provided in section 256 of the Municipal Court Act; but the court is without power to exact the deposit of an amount in excess of the judgment.
    
      Appeal by the defendants from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan.
    William C. Relyea, for appellant Steffen.
    Walter L. Bunnell, for appellant Zuhr.
    Louis A. Valente, for respondent.
   Gildersleeve, J.

Plaintiff brought this action to recover rent for certain premises leased to defendants. The defendant Steffen interposed the plea of infancy and the defendant Zuhr a general denial. A judgment by default was entered against the defendants, and the default of the defendant Steffen was subsequently opened and the ease set down for trial. Upon the day set for trial the plaintiff elected to discontinue the action against Steffen. The court directed that, upon such discontinuance, the defendant Steffen should not be allowed any costs; and a judgment was entered in favor of the defendant against the plaintiff, but without costs. Subsequently the defendant moved for an order directing the clerk to tax the costs and disbursements of the defendant Steffen, which was denied. The defendant Steffen appeals from such judgment and brings up for review the denial of his motion aforesaid. The default of the defendant Zuhr was also opened, but only upon condition that he should either give an undertaking in the sum of $100 to secure payment of any judgment that might be obtained against him, or deposit the sum of $100 as security therefor; and the order also failed to vacate the judgment. The defendant Zuhr appeals from such order. The plaintiff claimed the sum of eighty dollars in his complaint. By section 248 of the Municipal Court Act it is provided that judgment shall be rendered for the defendant “ with costs ” when the plaintiff voluntarily discontinues the action. The Municipal Court has, therefore, no power to direct the discontinuance of an action without costs. Blum, Jr., Sons v. O’Connor, 84 N. Y. Supp. 207. The judgment on the appeal of the defendant Steffen must, therefore, he modified, by striking therefrom the words without costs ” and inserting, in lieu thereof, the words with costs ” and, as modified, affirmed, without costs of this appeal to either party. The defendant Zuhr urges that the order from which he appeals did not vacate the judgment entered against him and also imposes onerous terms, in that it requires him to deposit with the clerk the sum of $100 as security for the payment of any judgment which the plaintiff may obtain, or give an undertaking in that amount to the same effect. The reason why such terms were deemed burdensome is that the plaintiff’s attorney agreed to await the appearance of the defendant’s attorney from another court before proceeding with the trial; and it is urged that, in violation of such agreement, the plaintiff took an inquest. It is not disputed that some verbal understanding was entered into between the attorneys for the respective parties to the effect that the case should not be proceeded with, until the defendant’s attorney could attend the call of the calendar in the Second District Municipal Court and then appear in this case, and that defendant’s attorney failed to appear until an inquest had been taken and the court adjourned. Such arrangements between counsel must be considered as being made subject to the disposition of the case as directed by the trial judge, who has the control of the calendar in his court, and who may, as it is said was done in this case, insist on the action being tried when reached. At any rate, the violation of such an arrangement between counsel is not ground for asserting that a justice is guilty of an abuse of discretion when he opens the defendant’s default upon such terms as the statute declares he may impose. This was an action for rent under a written lease signed by defendants, one pleading infancy and the other offering no affirmative defense; and the court below may well have assumed that the defendants were merely seeking delay and continuing the use of the property without rendering compensation therefor. Section 256 of the Municipal Court Act provides that, as a condition for opening a default, the court may require the defendant either to deposit the amount of the judgment or give an undertaking, etc. As the amount of the judgment in this case was but eighty dollars, the order should have provided that only that amount need be deposited.

Order appealed from by defendant Zuhr modified by requiring the defendant to either deposit the sum of eighty dollars in the court below or give an undertaking as required by section 256 and directing that the judgment be vacated and the default be opened, if the defendant complies with either of these conditions, and, as modified, affirmed, without costs to either party on this appeal.

MacLean and Seabury, JJ, concur.

Order modified, and as modified, affirmed, without costs to either party on this appeal.  