Opinion
July 11, 1967
Order granting motion for assessment of damages and denying cross-motion to open default affirmed, with costs and disbursement to respondents. On a prior appeal ( 27 A.D.2d 712), this court modified the order of Special Term to deny unconditionally defendants' motion to open their default in answering but granted leave to renew their application upon proper papers and on the following terms: payment of a full bill of costs to date, plus $250, such payment to be made within 10 days after service of a copy of this court's order. While defendants did tender the sum of $250 within the prescribed time, they did not tender any sum in payment of the costs. Instead, they demanded that plaintiff submit a bill of costs as taxed by the clerk. Defendants had no right to make any such condition. The provision for the payment was not a direction to pay costs but rather the sum that would be taxable as costs were the party entitled to tax them ( Hadjopoulous v. Manousso, 197 App. Div. 53). In fact, under such a direction a calculation made by the clerk is not a taxation but merely a convenience to Special Term to determine such matters as the number of terms of court and the like. And the party entitled to the sums may require the clerk to make the calculation ( National Sur. Co. v. Seaich, 183 App. Div. 110). The situation is quite otherwise as regards the party obligated to pay. While he could, doubtless, substantiate the amount he is required to pay by submitting the matter to the clerk, he is in no position to require his adversary to do so. Here, plaintiff offered to agree upon the items involved but defendants insisted upon the plaintiff's obtaining a taxation. This equivocating maneuver was of a piece with defendants' tactics which led to the entry of the order fixing terms and Special Term's disposition was neither unsound nor an improper exercise of discretion.
I dissent and would reverse. In my view there was no deliberate and willful default by appellants of the conditions imposed by this court on its prior appeal. When this court on the prior appeal granted appellants leave to renew their motion to open their default on condition they pay a full bill of costs to date plus $250, such payment to be made within ten days after service of a copy of this court's order, appellants did not unreasonably assume this court intended respondents to move with alacrity and promptly have such costs taxed and served upon appellants. It seems unreasonable to expect appellants to know what respondents' costs were, particularly if such costs impliedly included disbursements. (See 23 Carmody-Wait, New York Practice, Costs, § 257, p. 297; Empire Apts. v. Nussbaum, 48 N.Y.S.2d 136; also Diehl v. Dreyer, 103 App. Div. 590. ) It is not without significance that in both the National Sur. Co. case and Hadjopoulos case, cited by the majority, where leave to serve an amended pleading was granted upon terms, the bill of costs was taxed by the clerk of the court. It is also significant that after the parties failed to agree as to what was a proper bill of costs the respondents' attorneys did in fact, some 14 days after service of the Appellate Division order, submit a bill for taxation which was adjusted by the clerk to a lower amount. It was promptly paid by the appellants. This, after the earlier payment of the additional sum by appellants of $250 within 10 days after service of the order of this court, at which time they requested that they be supplied with a proper bill of costs. Respondents' attorneys rejected this payment and returned the draft. In my view appellants endeavored to comply with the previous order of this court but were frustrated from doing so. Whatever may have been appellants' conduct which led to the entry of the previous order, the record on this appeal does not, in my opinion, justify the order of the court below which precludes a trial on the merits or determination of the need for one and directs an assessment of damages.