Thaule v. Frost — 1 Abb. N. Cas. 298

Majority

p. 298

THAULE v. FROST.

N. Y. Supreme Ct., First Department; Chambers,

December, 1876.

Headnote

Stay by Non-payment op Costs.

Under section 315 of the Code as amended in 1876, proceedings are absolutely stayed by failure to pay costs imposed, and if the party in default moves, his motion will be denied with costs.

Motion was made by the defendant to open a judgment taken by default, which was dismissed with ten dollars costs. After the lapse of more than thirty days from the service of the order dismissing the former motion, and before the payment of the ten dollars costs, substantially the same motion was again made by the defendant.

Henry A. Frost, defendant in person, for the motion.

D. M. Porter, opposed.

This motion is denied on the ground that a previous motion was denied with costs, which have not been paid, and under the recent amendment to section 315 of the Code, the defendant’s proceedings were, by the failure to pay such costs, absolutely stayed. The defendant was not, therefore, entitled to make this motion. Motion denied, with ten dollars costs.

No appeal was taken.