Where a motion is granted conditionally, upon the non-performance of the condition by the adverse party, the order may be made absolute upon non-performance of the act, by applying ex parte to the same judge or court, on an affidavit showing the non-performance, and taking thereon a final absolute order; and serving this upon the adverse party."

70

The same principle applies where a motion is denied upon condition of the performance of an act by the opposing party, and he fails to perform it; and also where a motion is denied on condition of the non-performance of an act by the moving party, and he fails to observe the condition.

43. Reinstating lapsed order.]-An order denying a contested motion to vacate a previous order, or vacating a stay of proceedings, may properly fix a new day for an act the day for which has passed pending the motion. Thus, if a motion be made to vacate an order requiring a party to submit to examination before trial, or in supplementary proceedings, or to make discovery, or the like, and the day fixed by the original order meanwhile passes, an order denying the motion to vacate should proceed to fix a day for the party to appear, and direct him to do so with sufficient explicitness to justify punishment for contempt if he fails to comply.

44. Order declaring consequences of disobedience.]— It is a sound general principle that if an imperative order is drawn so as to express a penalty, or preclusion in the nature of a penalty, for its disobedience, the party against whom it is made is entitled to notice and opportunity to be heard before it is made absolute by reason of alleged disobedience.71

45. Qualifications-leave to renew.]-An order intended to leave the moving party at liberty to renew his motion should be so expressed; 72 otherwise he will be put to a motion for leave.73

70 Stewart v. Berge, 4 Daly, 477 (holding it irregular to issue execution after a motion to dismiss on appeal with stay had been granted on such a condition, and the adverse party had failed to perform the condition, but no order absolute had been applied for).

71 Rice v. Ehele, 55 N. Y. 518; rev'g 65 Barb. 185 (order for discovery, containing clause imposing consequence of disobeying it).

72 Dollfus v. Frosch, 5 Hill, 493.

73 See pp. 159, 160, of this volume.

The words "without prejudice." at

the end of an order of denial, have been held, in unreported cases, sufficient to save the right to make a fresh motion.

74

Although the denial of a motion does not usually bar a suit for the same relief, yet it is the better practice to reserve leave, whenever a motion is denied on the ground that an action is the proper form of remedy. But such leave ought not to be hampered with attempted restrictions on the cause of action.

A provision in an order denying relief on motion which assumes to limit the rights of the parties to bring an action for relief, either by prescribing terms or limiting the time for the commencement of such an action, is erroneous.

75

46 Order, until further order.]-An order purely incidental to the pendency of the action, which by its terms is to continue in force "until the further order of the court" for instance, an "—for injunction pendente lite is superseded by a judgment covering the whole case, for the judgment concludes all rights.76

47. Stay of proceedings.]— The rules governing clauses granting or vacating a stay may be more intelligently considered in connection with the general subject of STAYS of PROCEEDINGS, below, and the particular stays allowed on APPEAL.

48. Costs.]-The right to costs is statutory, at least, in courts of common law."

The award of costs is governed by the law in force at the time when the decision-whether of the court or judge in making an order, or of the clerk in taxing costs when no such decision is recessary is made awarding the costs.78

Where the right to costs is given by statute, a provision in an order of the court, purporting to limit the costs to less than are allowed by the statute, is a nullity, and entering an order containing such a provision is not a waiver by the party of the right to claim statutory costs.79

74 See p. 149 of this volume.

75 Howell v. Mills, 53 N. Y. 322, so held, reversing so much of an order as prescribed such terms and limited the time to 60 days in which to bring an action.

76 Gardner r. Gardner, 87 N. Y. 14; Jackson r. Bunnell, 113 N. Y. 216; Carpenter r. Fisher, 18 App. Div. 561, 46 N. Y. Supp. 7. This subject is further considered under STAY OF PROCEEDINGS and INJUNCTION.

77 Munson v. Curtis, 43 Hun, 214; Patterson v. Burnett, 23 N. Y. St. Rep. 363, 17 Civ. Pro. Rep. 115; Stevens v. Central Nat. Bank, 168 N. Y. 566. 78 Diefendorf . Diefendorf, 42 App. Div. 166, 59 N. Y. Supp. 163.

79 Gray v. Hannah. 3 Abb. Pr. (N. S.) 183; People v. Water Com., 58 App. Div. 554, 69 N. Y. Supp. 93; Roberson v. Rochester, etc., Co., 68 App. Div. 528, 73 N. Y. Supp. 898.

Under the New York statute it is in the discretion of the court cr judge determining a motion to award costs, either absolutely or to abide the event.80

49.

of several motions together.]—Where several motions are properly made together, and several orders therein,81 costs of each may be granted in the discretion of the court or judge.

50. of one motion in several actions.]— If a motion is made in several causes and determined as a single application, only costs of one motion can be allowed, whether the motion be granted2 or denied,83 although separate orders must be entered.84

51.

against parties en autre droit.]- The statute forbidding recovery of costs against executors and administrators in actions on demand against the decedent, unless the demand was duly presented and unreasonably resisted, or a consent to the determination of the claim by the surrogate not filed,85 is not to be extended by construction to costs of motion.86

Costs of motion awarded against an "executor or administrator sued in his representative capacity, or suing, and necessarily in that capacity,87 or the trustee of an express trust, or a person expressly authorized by statute to sue or be sued," must be awarded as in an action by or against a person in his own right, but are collectible only from the estate, fund, or person represented, unless the court directs them to be paid by the party personally, for mismanagement or bad faith in the prosecution or defense.88

80 N. Y. Code Civ. Pro., § 3236.

81 For an instance see Brown v. May, 17 Abb. N. C. 208; Gregory v. Travis, 1 How. Pr. 92. See, on this subject, Willink v. Reckle, 19 Wend. 82, relaxing the old rule that only one set of papers would be allowed for. Compare as to two motions when one was enough. Mitchell v. Westervelt, 6 How. Pr. 265; aff'd in Id. 311 note.

82 Jackson v. Keller, 18 Johns. 310; McCoun r. N. Y. C. & H. R. R. R. Co., 50 N. Y. 176; Sharkey v. Morgan, 14 N. Y. St. Rep. 940.

83 Jackson v. Garnsey, 3 Cow. 385.

84 August . Fourth Nat. Bank, 9 N. Y. Supp. 270, 31 St. Rep. 85.

85 N. Y. Code Civ. Pro., §§ 1835, 1836.

86 Hunt v. Connor, 17 Abb. Pr. 466.

87 Bedell v. Barnes, 29 Hun, 589.

88 N. Y. Code Civ. Pro., § 3246; American Life Ins. Co. v. Van Epps, 14 Abb. Pr. (N. S.) 253; rev'd, on other grounds, in 56 N. Y. 601. Does not apply to an action arising after decedent's death. Mullen v. Quinn, 88 Hun, 128, 34 N. Y. Supp. 625.

52.

against officers.]-Statutes89 giving increased costs to public officers are not to be extended by construction or analogy to motions, but public officers take no more costs on a motion than other parties.90

53. not given unless in the order.]- Costs cannot be had on a motion, unless awarded in the order.91

There was formerly a rule of court authorizing the clerk to insert an award of costs when the court denied a motion without saying anything about costs; but under this rule the award had to be inserted in the order.92

A subsequent motion to grant costs or disbursements of a prerious motion is not allowable. The remedy for the omission, if any, is by motion to resettle, or to correct the order, or to reopen or rehear the motion.

An award of costs does not carry disbursements.93

Where an order awards, as a condition of granting a favor, costs of previous proceedings, it is the better practice either to fix the items and the amounts, or to direct taxation by the clerk, and in the latter case to define clearly what proceedings are to be deemed within the meaning of the order.

54. amount; disbursements.]-The costs on a motion (other than a motion for a new trial upon a case, or an application for judgment on a special verdict), cannot exceed, " to each party to whom costs are awarded," "ten dollars, besides necessary disbursements for printing and referee's fees."94

The statute contemplates a sum to be fixed by the order not exceeding $10, but the almost uniform practice is to allow the full

89 Such as N. Y. Code Civ. Pro., § 3258.

90 Rider v. Hubbell, 4 Wend. 201; Waring v. Acker, 1 Hill, 673.

91 Tully v. Eastburn, 1 Monthly L. Bul. 74; Johnson v. Jillitt, 7 How. Pr. 485; Chadwick v. Brother, 4 id., 283. And if the order awarding them is entered without settlement or direction of the judge, other than decision or opinion rendered by him which said nothing about costs, he cannot subse-' a motion for the purpose. quently sanction the award of costs, except on Siegrist v. Holloway, 7 Civ. Pro. Rep. (Brown) 58.

92 Jackson v. Gayer, 2 Cow. 484.

93 Paton v. Barker, 5 N. Y. Leg. Obs. 100. 94 N. Y. Code Civ. Pro., § 3251, subd. 3.

That they cannot exceed that sum, see Schriver v. Schriver, 12 Wkly. Dig. 328; aff'd in 86 N. Y. 575; Bishop v. Hendrick, 82 Hun, 323, 31 N. Y. Supp. 502. Nor include stenographer's fees upon the reference. Ward v. Ward, 21 N. Y. Supp. 587, 23 Civ. Pro. Rep. 61.

amount, if anything; and an order expressed to be "with costs," merely, is held to entitle the party to tax $10, if unpaid, in the costs of the cause; 95 but whether it would justify execution on the order may be more questionable.

Disbursements for printing are allowable only when printing is required by rule of court.96

55. who entitled.]-An order expressed to be "with costs," without saying to whom to be paid, is presumed to be in favor of the party succeeding on the proceeding for which the costs are allowed."7

56. charging on attorney. Costs may be personally charged on an attorney on vacating an order obtained by him in violation of proper practice, or for his own benefit.

-

99

98

57. omission to ask in notice.]- Costs are not usually al-. lowed to the moving party even on a contested motion, if not asked in the notice, but the court have power to allow them, if the adverse party appears. If the latter does not appear they cannot be allowed if not asked in the notice.1

58. change of situation since notice.]- If a moving party had good ground for moving when he made the motion, the fact that the adverse party has corrected the irregularity or defect which constituted the cause of the motion, before the motion came on to be heard, though it may entitle the latter to a denial of the motion, does not justify a denial with costs.2

95 Pennell v. Wilson, 2 Abb. Pr. (N. S.) 466, 28 Super. Ct. (5 Robt.) 674. 96 Veeder v. Judson, 91 N. Y. 374.

97 Stevenson v. Pusch, 40 How. Pr. 91. Unless, perhaps, where they are directed to abide the event.

98 Such as obtaining an injunction a second time after a previous injunction granted on the same papers had been dissolved. Schaughnessy t. Reilly, 41 How. Pr. 382. See also McVey v. Cantrell, 8 Hun, 522. dalous matter in pleading.)

(Scan

So costs may be personally charged on an attorney on denying a motion made by him for his own benefit. Eisner v. Hamel, 6 Hun, 234.

99 Chase v. Chase, 29 Hun, 527.

1 See note to Form No. 99 (below); Smith v. Fleischman, 17 App. Div. 532, 45 N. Y. Supp. 553.

2 N. Y., Lake Erie, etc., R. R. Co. v. Carhart, 36 Hun, 288.