Opinion
December 30, 1908.
Francis R. Stoddard, Jr., for the appellant.
Gilbert Ray Hawes, for the respondent.
When the case was called for issue on November 7, 1907, defendant's attorney filed an affidavit alleging non-payment of the costs of a former action between the parties for the same cause, in which the complaint was dismissed, and asked that further proceedings be stayed until the payment of such costs. Counsel differ as to whether the court granted or denied this motion, but it is conceded that no order was entered or signed making any disposition of it. On April 13, 1908, the action was reached for trial before another justice. Upon the call of the calendar the plaintiff answered "ready," and counsel for the defendant, as the return shows, "moved for a stay on the ground of failure on the part of plaintiff or his counsel to pay costs of former action. Plaintiff's counsel states in open court that such motion was made at a prior time before another justice and said motion was denied." Defendant's motion was denied and the case sent for trial to the justice presiding in Part 2 of said court, where an inquest was taken, and the judgment appealed from accordingly entered.
There was no power in the Municipal Court to stay the proceedings in this action until the payment of the costs of the former action ( McKown v. Oppenheimer, 60 Misc. Rep. 98; 111 N Y Supp. 609), and an appeal does not lie from the judgment. ( Schwartz v. Mutual Alliance Trust Co., Id. 610.) We are of the opinion that the motion to open the default and vacate the inquest was properly denied. ( Warth v. Moore Blind Stitcher Overseamer Co., 125 App. Div. 211; 109 N.Y. Supp. 116.) The contention that the action is for an assault and battery, of which the Municipal Court had no jurisdiction, is without merit ( Hines v. Dry Dock, E.B. B.R.R. Co., 75 App. Div. 391.)
The judgment and order must be affirmed, with costs.
WOODWARD, JENKS, HOOKER and GAYNOR, JJ., concurred.
Judgment and order of the Municipal Court affirmed, with costs.