Wellman v. Frost

Headnote

Practice — right to issue a precept to collect the costs of a motion— Code of Civil Procedv/re, sec. 779 — when the order is served by mail the pa/rby has twenty days within which to pay them — costs of a motion ca/nnot be set-ojf against other motion costs, after the latter hme been assigned by the pa/rty.

Appeal from an order made herein, by Hon. E. M. Cullen, dated July 27, 1885, setting aside and vacating, with ten dollars costs, a precept issued by plaintiff’s counsel to collect ten dollars costs of a motion awarded to plaintiff (on a motion made by him to strike out portions of defendant’s answer), and setting off such costs given by the order appealed from against the ten dollars, to collect which the precept was issued. A copy of the order

was served by mail on the defendant’s attorney on July 2, 1885. A precept for the collection of the costs was issued on July third; the ten dollars costs awarded plaintiff, and for which the precept was issued, had, before the motion to set aside the precept was made, been assigned for a valuable consideration to A. J. Moore, the counsel for plaintiff, and a preliminary objection was made to said motion, that no notice of said motion had been given the assignee, which objection was overruled by the court.

The court at General Term said: “ The act of 1847, which provided for the collection of motion costs by a precept, was repealed by chapter 417 of Laws of 1877; but section 779 of the Code of Civil Procedure was amended by chapter 397 of Laws of 1882, so that the substance of the law of 1847 upon this subject was re-enacted and embodied in section 779. That section now allows an execution to issue for the collection of motion costs. (Laws of 1882, p. 563.) The precept was set aside upon t'he ground that it was unauthorized. This was error. But the order awarding costa having been served by mail, the respondent had twenty days in which to pay and the precept was prematurely issued, and upon this ground the precept was properly set aside.

“ The amendment to section 779 of Code, passed in 1882, before referred to, provides for the issuing of the execution only in case the costs are not paid within the time fixed by the order, and if no time is fixed by the order then in ten days. The order setting aside the precept was therefore right. The costs of the previous order, however, had been assigned to one A. J. Moore, and the costs imposed by the order setting aside the precept could not be set-off against them after such assignment.

“ Order modified by reversing so much of the order appealed from as provided for the set-off, without costs.”