
    Dorothy Farber, an Infant, by Maurice Farber, her Guardian ad litem, Respondent, v. Samuel Flauman et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1900.)
    1. Municipal Court of the city of Mew York — Costs may be imposed
    as a condition of adjournment, but the failure to pay them does: not prevent the party from proceeding in the action — Code Civ, Pro., § 779, does not apply. . .
    A justice of the Municipal Court of the city of New York may impose costs upon a defendant as a condition of granting him an adjournment, but his failure to pay them does not prevent him from taking part in the trial on the adjourned day.
    Section 779 of the Code of Civil Procedure, staying proceedings for nonpayment of costs, does not apply to said Municipal Court.
    
      2. Same — Disposition of motion costs.
    Where motion costs are granted in the said Municipal Court, they should be included in the judgment if the party awarded them is finally successful; but where that party is finally defeated, the motion costs should be offset against the costs of the party who is finally successful.
    
      Appeal from a judgment of the Municipal Court of the city of Hew York, fifth district, borough of Manhattan, in favor of the plaintiff.
    Moses Feltenstein, for appellants.
    I. A. Hourwich, for respondent.
   O’Gorman, J.

The trial justice had an undoubted right to impose the costs in question as a condition of the adjournment sought by the defendants (Laws of 1882, chap. 410, § 1420, subd. 3), but the nonpayment of these costs did not deprive the defendants of the right to take part in the trial on the adjourned day. Section 779 of the Code of Civil Procedure, providing for the staying of proceedings of the party defaulting in the payment of costs, has no application to the Municipal Court. Even wheré that section is applicable, the nonpayment of costs never impairs the defensive rights of a party. Randell v. Abrisqueta, 20 Abb. N. C. 292. The stay mentioned in section 779 of the Code is intended only to prevent an onward movement in the action by the party who owes costs of motion. When the plaintiff moved his case for trial on the adjourned day, the defendants should have been permitted to participate therein, and introduce their proofs. Where motion costs are granted in the Municipal Court, they are to be included in the judgment if the party is successful, or offset against the costs of the successful party, if the party entitled to the costs should be finally defeated.

Beekman, P. J., and Giegerich, J., concur.

Judgment reversed and new trial ordered, with costs to appellants, to abide event.  