Kokomo Straw Board Co. v. Sachs — 26 N.Y. St. Rep. 589

Majority

p. 589

The Kokomo Straw Board Company, Resp’t, v. Louis Sachs, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1889.)

Headnote

Security for costs — Should be returned to plaintiff if successful.

Plaintiff deposited $250 as security for costs, and thereafter recovered judgment, from which an appeal was taken. A motion for repayment of said sum to plaintiff was granted. Held, that as neither the pleadings, proceedings nor judgment were before the court, the appellant's affidavit was insufficient to overcome the presumption of the correctness of the judgment, and that, as the condition of the deposit was satisfied, it should no longer he withheld from its owner.

Appeal from an order of the Monroe special term of May, 1889, directing the treasurer of that county to pay to the plaintiff the sum of $250, previously deposited with such treasurer in pursuance of an order of this court as security for costs in this action.

George F. Yeoman, for resp’t; H. G. Danforth, for app’lt.

This action, which was upon a contract for goods sold and delivered by the plaintiff to the defendant, has

p. 590

been tried before a referee in pursuance of a stipulation, and has resulted in a judgment in favor of the plaintiff. An appeal has been taken to the general term from such judgment, and the affidavit in behalf of the appellant states that the same was taken in good' faith. Neither the pleadings, nor the proceedings before the referee, nor the findings and judgment, have been laid before us.

The affidavit of the appellant, under these, circumstances, cannot be deemed sufficient to defeat the strong legal presumption which arises in favor of the validity and correctness of the judgment.

The application to the special term was addressed to its sound discretion, and we are unable to say, from the papers before us, that there has been any abuse of such discretion. The deposit belongs, not to the defendant, but to the party who placed it in the hands of the treasurer, and it ought not longer to be withheld by this court from its owner, inasmuch as the condition upon which it was so deposited has been satisfied by the recovery of - a judgment by the plaintiff upon its demand.

The order should be affirmed, with ten dollars costs and disbusements.

Dwight, J., concurs.