Ketcham v. Elliott — 49 N.Y. St. Rep. 806

Majority

p. 806

Mary M. Ketcham, App’lt, v. William B. Elliott, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

Default—Conditions on opening.

On opening a default, where money deposited in lieu of bail has been applied on the execution, it is unreasonable to require the plaintiff to re- » turn such money, and the defendant should be required to pay plaintiff's disbursements as well as the costs of motion.

Appeal from order opening a default and vacating a judgment entered thereon.

The order required defendant to pay ten dollars costs, and that plaintiff to return certain moneys which had been deposited in lieu of bail and had been paid to her by the sheriff on the execution.

Richard A. Springs, for app'lt; Henry L. Brant, for resp’t.

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 ten dollars costs and the disbursements of this appeal. Order modified accordingly.

O'Brien and Barrett, JJ., concur.