Majority
Headnote
The non-payment of motion costs only stays an aggressive but not a defensive act by the party owing them.The defendant served his answer in time, but it was returned by the plaintiff, on the ground that, because the defendant owed $10 motion costs, his proceedings were stayed, and "that he could not make his
This is a mistaken notion of the rule. The provision of the Code (§ 779) “ was intended to prevent an onward movement in an action by a party who owed costs of a motion” ( 26 Hun, 520 ), but.was not intended to prevent a party moved against from asserting his natural and legal right of-.self-defense. In Lyons v. Murat ( 54 How. Pr. 23 ), the plaintiff, who owed motion costs to the defendant, was held stayed, until payment, from serving a reply to a counter-claim pleaded by the defendant. But the plaintiff was the aggressor in that case. He was the moving party, and his action was in the nature of an onward movement against the defendant, and the court stayed his further prosecution of the action until costs due had first been paid. That case extends .the- rule as far as it can be carried. It does not reach the question in the form in which it is now presented.
It follows that the motion for judgment as by default for want of an answer must be denied.
Cases cited
- Lyons v. Murat 54 How. Pr. 23 p. 304