Edlefson v. Duryee — 28 N.Y. Sup. Ct. 607

Majority

p. 607

MADELINE W. EDLEFSON, Respondent, v. JOSEPH W. DURYEE, Appellant.

Headnote

Costs — cannot be allowed, upon the granting of an ex parte order. .

Costs cannot be allowed upon tlie granting of an ex parte order requiring the defendant to file his answer.

Appeal from an order made June 17, 1880, reinstating an ex parte order made June 14, 18S0, directing the defendant to file

p. 608

liis answer, within five days, or in default thereof that the said answer be deemed abandoned, and granting $10 costs to the plaintiff.

On or about May 24, 1880, the plaintiff served upon the defendant a notice to file his answer, and on June 14, 1880, upon an affidavit showing that the answer had not been filed, obtained an order ex parte, that it be filed within five days, or in default thereof that the said answer be deemed, abandoned, and imposing $10 costs on the defendant. • On June 16, 1880, the defendant obtained, ex pa/rte, a modification of such order so as to strike therefrom the direction as to the $10 costs. On the same day the plaintiff obtained an order to show cause why the order of June 14 should not stand as originally granted herein, and the subsequent order of June 16, modifying the same by striking out the costs, should not be vacated and set aside. The motion came on to be heard and was argued, and the order of June 1Y, 1880, made, from which the defendant appealed. .

Carlisle Norwood, for the appellant.

Ernest T. Fellowes, for the respondent.

The appellant is right in his conclusion. The order to file the answer 'was ex parte, and costs should not have been allowed. (Browne v. Anthony, 13 How., 301 .) Beside, it was a judge’s order. (See Brevoort v. Warner, 8 How., 821 .) A party might as well insert motion costs in an order of arrest, or for time to answer.

The order should be reversed, with $10 costs, and the disbursements of the appeal, and the motion to vacate the order of June 16, 1880, denied, without costs.

Present — Davis, P. J., Brady and Barrett, JJ.

Order reversed, with $10 costs and disbursements, and motion denied without costs.