Jones v. Case

38 How. Pr. 349 | N.Y. Sup. Ct. | 1869

By the Oowrt,

Johnson, J.

The orders appealed from not only affecte'd a substantial right, but they were designed and intended to determine the actions, and prevent a judgment. They are, therefore, clearly appealable. It is the clear legal right of a plaintiff when his cause is reached upon the regular call of the calendar,' to move it for trial, and to proceed to trial and judgment, unless some reason is shown for postponing the trial to a future time. The defendant here did not wish to postpone. He had no defense and did not want any trial at all, all he asked for was to stop the trial and not allow the plaintiff to have.any trial, or judgment, and this was what was granted by the order, a conditional order was made as a substitute for the judgment, to which the plaintiff was entitled, the defendant having no defense. The plaintiff could not enforce the order, and could not be required to accept it as a substitute for a judgment. The object of the defendant appears to have been to get rid of the trial fee in the actions. But we are cleaidy of the opinion, that if he had paid according to the order, the plaintiff would have been entitled to his trial fee.

When a defendant insists upon a defence until his cause is called, and moved for trial, by the other party, he cannot then put an end to the action by payment, without being liable to pay a trial fee, if the plaintiff insists upon it; a different rule would encourage sham defenses to postpone the payment of just debts. A defendant by such a course, puts a plaintiff to all the trouble and expense of a trial, and should be required to pay the trial fee. Moving the case for trial, under such circumstances, is equivalent to a trial. It is part of the trial' of every cause tried. The discontinuance of the action by a plaintiff, after the cause has been called and moved for trial by a defendant, would clearly entitle the latter to charge a trial fee as part of his costs. (Pomeroy agt. Hulin, 7 How., 163; per Allen J. Moffat agt. Ford, 14 Barb., 577). The motion to dismiss the appeal must therefore be denied, and the order appealed from, reversed, with costs of the appeal.