Edna A. Goss, Appellant, v. Elmer L. Hays, Respondent

Edna A. Goss, Appellant, v. Elmer L. Hays, Respondent. Appeal from a judgment of a justice of the peace—the costs must he paid—the exercise of discretion by the County Court in refusing to allow them to be paid nunc pro tune is not reviewable. In order to perfect an appeal from a judgment rendered by a justice of the peace, the costs of the action must be paid. Semble, that the Appellate Division has not power to review the exercise by the County Court of "the discretionary power conferred on it by section 3049 of the Code of Civil Procedure, in refusing to allow an appellant to perfect his appeal by paying costs nunc pro tune. Appeal by the plaintiff, Edna A. Goss, from an order of the County Court of Clinton county, entered in the office of the clerk of the county of Clinton on the 3d day of October, 1898, granting the. defendant’s motion to dismiss an appeal taken by the plaintiff to the County Court of Clinton county from a judgment in favor of the defendant rendered by a justice of the peace. H. S. Haff, for the appellant. John H. Booth, for the respondent. [MAJORITY — Herrick, J.:] Herrick, J.: As a matter of fact the costs in the Justicels Court in this case were not paid, and their payment is necessary to perfect an appeal. (Kenney v. Livery Stable Keepers' Assn., 89 Hun, 190.) The circumstances, 'however, are -such that if" seems to me the County Court might well have permitted that to have been done, nwnc pro tnmc, under section 3049 of the Code of Civil Procedure. It has, however, declined to do so. It was a matter resting in its discretion, and there is a long line of authorities holding that we have not the right to review that exercise of discretion. (Tucker v. Pfau, 70 Hun, 59; Wright v. Chase, 77 id. 90; Myers v. Riley, 36 id. 20; Thomas v. Keeler, 52 id. 318; Bantleon v. Meier, 81 id. 162; People v. Young, 92 id. 373, 377; National Wall Paper Co. v. Szerlip, 9 App. Div. 206; Judson v. O'Connell, 37 N. Y. St. Repr. 581; Sexton v. Bennett, 43 id. 85.) The only case that I have been able to find where the discretion of the County Court was overruled upon appeal is the case of Gutbrecht v. Pros. Park & C. I. R. R. Co. (28 Hun, 497). There would seem to be no alternative, therefore, but to dismiss the appeal. All concurred. Appeal dismissed, with ten dollars costs and disoursements.