Ketcham v. Elliott — 20 N.Y.S. 745

Majority

p. 745

Ketcham v. Elliott.

(Supreme Court, General Term, First Department.

November 18, 1892.)

Headnote

Judgment—Setting Aside Default—Conditions—Costs.-

An order of arrest was issued, $250 deposited in lieu of bail, and default judgment taken for $897.16, and the deposit was applied to the execution, the default was vacated at special term, and defendant required to pay $10 costs, and plaintiff to return the money received on execution. Held, that plaintiff should not have been required to refund-the money, but the judgment should stand as security until final trial, and defendant should have been required to pay plaintiff’s disbursements in addition to the costs.

Appeal from special term, New York county.

Action by Mary M. Ketcham against William E. Elliott. Order of arrest was issued, bail was deposited, and default taken. Erom an order opening default, the plaintiff appeals. Modified.

Argued before O’Brien and Barrett, JJ.

Richard A. Springs, for appellant. Henry L. Brant, for respondent.

We think that, in addition to the costs of,the motion at special term, the defendant should at least have been required to pay the disbursements to which the plaintiff had been subjected. These disbursements amounted to $7.74, and the order should be modified so as to require the payment of these disbursements in addition to the costs of the motion. We also think that it was unreasonable to require plaintiff to return the money which had been paid to her by the sheriff under the execution. The proper course would be to permit the judgment to stand as security, and to make no requirement at the present time with regard to the sum in question. That part of the order which required the restoration of the money should be reversed, without prejudice to any proceedings which the defendant may hereafter take for restitution in case he shall ultimately succeed in the action; and the defendant must also pay $10 costs and the disbursements of this appeal. Order modified accordingly.