Herbert Charles & Co. v. 666 Fifth Corp. , 170 N.Y.S.2d 989 ( 1958 )

Plaintiff-appellant appeals from two orders entered at Trial Term, Part I, on December 10, 1956, which denied appellant’s motions (1) to restore the cause to the Inquest Jury Calendar for the taking of an inquest against certain of the defendants-respondents and (2) to hold various attorneys in contempt, and stayed all further proceedings on the part of appellant until payment to each defendant of $10 costs awarded by the orders. For convenience the two orders are treated together. Subsequent to the denial of the motion for an inquest, a motion for similar relief then pending before Justice Benvenga was granted so as to authorize an inquest against certain of the defendants-respondents and the matter referred to an official referee for an assessment of damages. No appeal having been taken and perfected therefrom by any of the parties, that order remains in effect and we need not consider further the merits of the denial for inquest here. As to that branch of the motion, the appeal is dismissed, the question being academic. We are of the opinion that the court decided correctly that there was not sufficient to warrant holding the respondents in contempt. Respondents contend that costs were properly imposed because this was in effect a reargument of three prior and separate motions decided adversely to the appellant and that the imposition of costs is justified by the history of the case and by virtue of the provisions of section 1520 of the Civil Practice Act. We are of the opinion that where leave has been granted to prosecute or defend as a poor person under the circumstances revealed here, the imposition o£ costs is error. Under such circumstances, sections 1488, 1491 and 1520 of the Civil Practice Act are to be read in conjunction with and are limited by section 1493 of the Civil Practice Act. The orders appealed from are modified, on the law, by deleting therefrom the provision for payment of costs by the appellant, the stay is vacated, and otherwise dismissed and affirmed in accordance with this memorandum, without costs. Settle order.

Concur — Botein, P. J., Breitel, McNally, Stevens and Bastow, JJ.