Barry v. Winkle , 71 N.Y.S. 845 ( 1901 )

Per Curiam.

There was no waiver of the costs in question by the defendant. The order appealed from imposing forty-five dollars costs was proper. The case was on the short cause calendar and upon its trial the parties hereto had the right to one hour; if, at the end of that time, the court deemed it proper, he might order the case upon the general calendar. The case did take over one hour to try, and in pursuance of the power vested in him the trial justice ordered it to the general calendar and directed the plaintiffs to pay the defendant forty-five dollars costs for their failure to try the case in the time limited. The power of the court to impose reasonable costs in such instances has never to our knowledge been questioned. Even the plaintiffs’ attorney concedes the power of the trial justice to do so. See stipulation in the case. The plaintiffs in having this case placed on the short cause calendar, thus giving them an earlier trial than other litigants, having issues of even date, were the recipient of a favor. Their failure to do as required by the order granting them such favor, to-wit, to dispose of their case within one hour, created partly the disfavor of the court, which was properly expressed in this instance by the imposition of the costs in question, which were not unreasonable or a violation of sound discretion.

The order appealed from is affirmed, with costs.

Present: Fitzsimons, Ch. J., Delehanty and Schuchman, J.

Order affirmed, with costs.