O'BRIEN et al., Respondents, v. THOMAS et al., Appellants

O’BRIEN et al., Respondents, v. THOMAS et al., Appellants. (Supreme Court, Appellate Division, First Department. October 19, 1906.) Appeal from Trial Term. Action by John O’Brien and another against Edward R. Thomas and others. Defendants moved to dismiss the complaint for lack of prosecution and nonpayment of costs on withdrawal of a jury. From the order “that the said motion be, and the same is hereby, granted, with $10 costs, unless plaintiffs forthwith place this action on the October calendar,” defendants appeal. Modified. Richard A. Irving, for appellants. John W. Browne, for respondents. [MAJORITY — PER CURIAM.] PER CURIAM. Order modified, so as to provide that the motion be granted, with $10 costs, unless the plaintiff shall forthwith place the cause upon the November calendar, and shall within five days pay $10 costs of motion and the costs and disbursements imposed by the order of this court entered March 10, 1905, modifying the order of the court at Trial Term, which granted plaintiff’s motion to withdraw a juror, and, as so, modified, the order appealed from is affirmed, with $10 costs and 'disbursements to the appellants.