#### Edwin Hayward, Resp’t, *v.*The Manhattan Railway Company, App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Action—Failure to prosecute—When not excused.

A failure to prosecute caused by the inability of the plaintiff to pay the costs awarded against him upon the failure of his proof at the trial, and as a condition of his right to a further trial with additional proof, does not destroy or excuse the neglect to prosecute.

2. Same—Dismissal.

A dismissal for a failure to obey orders is a general power inherent in courts of justice.

3. Same—What deemed voluntary failure to prosecute.

Where the plaintiff escapes a non-suit on the condition that he will pay certain costs within a certain time, a refusal to comply must be deemed voluntary when no application is made to extend the time in the court where the action is pending and such failure is voluntary and a failure to prosecute.

4. Same—Code Civil Pro., §405—Statute of limitations.

Where the final action is dismissed for a failure to prosecute the plaintiff, such action is not within the exception under Code Civil Procedure, § 405, and the Statute of Limitations in regard thereto will apply.

Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.

Davies, *Cole & Bapalb (.Frederic A. Ward,*óf counsel), for app’lt; *George W. Wilson (Chas. J. Patterson,*of counsel), for resp’t.

Barnard, P. J.

This action is brought to recover for injuries suffered in consequence of the defendant’s negligence. The injury was occasioned in November, 1883, and this action was com*358menced in May, 1887. By section 383 of- the Code of Civil Procedure, such an action is barred in three years.

To meet this, the complaint avers that .an action for the same cause was commenced within the three years; that it was brought to trial on the 7th of March, 1887; that the proof failed to support the action and in consequence thereof, the plaintiff was permitted to withdraw a juror upon condition that the case be set down for trial on the first Monday of April, 1887, and upon the further condition that the plaintiff pay twenty dollars trial costs and - disbursements of defendant upon the former trial within ten days. The time was twice extended in which to make these payments. The payments were never made. On the twentieth of April, the case was dismissed for “failure to pay said costs,” and final judgment was therefore entered. The costs were not paid, because the plaintiff was unable to pay them.

Section 405 of the Code provided that when a judgment is reversed on appeal without awarding a new trial, “ or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment on the minutes,” the plaintiff may commence a new action within one year after such reversal or termination. The plaintiff does not come within this exception. The final action was dismissed for a failure to prosecute. That failure to prosecute is caused by the inability of the plaintiff to pay the costs awarded against him upon the failure of his proof at the trial, and as a condition of his right to a further trial with additional proof, does not destroy or excuse the neglect to prosecute. It was a refusal to obey the order of the court and was voluntary even if he had not the necessary money with which to pay the costs imposed as a condition of a favor granted to him.

A dismissal for a failure to obey orders is a general power inherent to courts of justice. *Gross*v. Clark, 87 N. Y., 272.

The power is expressly given by section 822 of the Code. The case is stronger than *Morange*v. *Meigs,*54 N. Y., 208. In that case there was a dismissal of the plaintiff’s complaint for a refusal to go on with the trial.

In the present case the plaintiff escaped a non-suit on the condition that he would pay certain costs within a certain time, and a refusal to comply must be deemed voluntary when no application was made to extend the time in the court where the trial was pending, and such a failure is voluntary and is a failure to prosecute. *Olis*v. *Grey,*3 Mon. Bull., 11; *Moloughney*v. *Kavanagh,*4 id., 43.

. We think, therefore, that the action was dismissed by the court of common pleas in Eew York for a neglect to prosecute the same, and that the statute of limitations has barred the claim.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

All concur.