Place v. Hayward

Headnote

Costs—payment by execution in person.—Res adjudicata—when party muy not enter fidgment for costs against plaintiff personally, motion to charge plaintiff personally therewith having been denied.

Appeal by defendant from an order vacating a judgment, that plaintiff personally pay the costs of the action.

The court at General Term said :—lf The court below vacated the judgment, for the reason that it directed that plaintiff personally pay the costs of the action.

“ Apart from an order of the court, the only justification for such a provision in the judgment would be that the referee, if he possessed such power, had directed that such a judgment be entered. The referee had not made such a direction. The appellant, before entering the judgment that was afterwards vacated, made a motion that the defendant be allowed the costs against the plaintiff personally. This was denied, and upon ap

pellant’s appeal from it, the general term affirmed the order of denial. This was an adjudication in the action that the defendant was not entitled to the provision in question. He was bound by it, and could not enter a judgment to the contrary of it. This would be correct if the referee had directed judgment for the defendant, as to costs against the plaintiff personally. For, he voluntarily would have submitted the question for re-adjudication and this would control his action.

If. the special term, in denying the motion, acted upon an imperfect state of facts, the remedy would be to ask the special term to grant, in its discretion, a re-argument upon the facts fully stated.