Solomon v. Rothenberg

Sweedler, J. The action originally came on for trial November 9, 1932. Towards the end of the trial the plaintiff moved to discontinue the action. The motion was granted. The court, however, imposed costs which were to be paid no later than 278 December 5, 1932. To date plaintiff has failed to pay the costs. The defendant seeks to have the complaint dismissed. It is plaintiff’s contention that the present motion is without basis, since an order of discontinuance brings the action to an end, and thus there is no complaint which can be dismissed. The authorities, however, hold otherwise. (Young v. Bush, 36 How. Pr. 240.) In Hyde v. Anderson (112 App. Div. 76) the court held that payment of costs is a condition precedent to the discontinuance of an action. Until all the terms of the order heretofore made as a condition to the discontinuance are satisfied, this action remains a pending issue. The plaintiff having failed to comply with the terms of the order, the defendant may move to dismiss complaint for failure to prosecute. (Anderson v. Norton, 158 N. Y. Supp. 152; Sim v. Pindell, 140 Misc. 808.) Motion to dismiss is denied on condition that the plaintiff pay the costs contained in the previous order within five days after service of a copy of this order with notice of entry thereof; otherwise, motion is granted, with ten dollars costs. Settle order on notice.