Brown v. Kahn

Headnote

Costs of a motion, — 'payment thereof to a sheriff holding a precept against the party entitled thet'eto — is sufficient.

Appeal from an order denying a motion to set aside an order of reference and an order reviving the action.

The motion was made principally upon the ground that the costs of the motion to revive the action had not been paid to the defendant, as required by the order made thereon, and that thereby all proceedings were stayed by virtue of section 779 of the Code of Civil Procedure.

The court at General Term said : “ The application to set aside the orders was predicated of the non-payment of the costs of the motion. The respondent answered this objection by a receipt showing the payment to the sheriff, on account of the defendant, of the sum of ten dollars.

“ This payment was made, it appears, from the brief of the appel • lant, upon a precept issued in an action between the same parties, and in favor of the respondent for the sum of ten dollars costs, awarded to,him on a motion.

“ The character of the process does not appear from the paper’s submitted and on which the motion was based ; but wo think that the appellant is bound by the admissions thus made in open court. The precept having been issued against the defendant, the payment of ten dollars on his behalf to the sheriff on that precept was in our judgment a payment justified by the provisions of section 293 of the Code. A precept is in effect an execution upon a judgment, because the costs having been awarded, and the statute allowing a precept to issue for their collection, the sheriff is justified in levying upon any property subject to execution under the rights acquired.”