MacWhinnie v. Cameron

11 N.Y.S. 20 | N.Y. Sup. Ct. | 1890

Lead Opinion

Brady, J.

The motion to vacate the execution 'rests upon the provisions of section 779 of the Code, which declare that, where the costs of a motion are directed to be paid, all proceedings on the part of the person required to pay them, except to review or vacate the order, are stayed without further direction of the court until the payment thereof. The costs ¿warded the defendant had not been paid when the execution was issued herein on behalf of the assignee, and the defendant insists that it could not therefore be properly issued. The answer made to this proposition is that the payment of costs was not obligatory upon the assignee, inasmuch as they were not given against him, and he was not ordered to deduct them from the judgment. This answer availeth not. The assignee took the assignment subject to the equities existing between the original parties. He stands, therefore, in the same position as the assignor. The rule is well settled. Bush v. Lathrop, 22 N. Y. 535; Young v. Guy, 12 Hun, 825. He might perhaps have proceeded with the execution had he deducted the costs due to the defendant from the amount of the judgment, or credited the amount of them upon the execution; but he did neither. He treated the obligation to pay them inferentially imposed by section 779 as if he owed the defendant no duty in that respect, and, as we have seen, did this intentionally, on the assumption that the order to pay costs in no way affected him. Hot having deducted them from the amount of the judgment, he issued an execution for a sum not due, and in excess of what was due, just the amount of them. The statute is, however, imperative, and cannot be wholly disregarded, as it was here. The order appealed from should therefore be reversed, with $10 costs and the disbursements of this appeal.

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Concurrence Opinion

Van Brunt, P. J.

I concur in the result. I do not concur in the view that the assignee was not compelled to pay these costs as a condition precedent to proceeding, but might have credited them upon the judgment. The Code requires payment, and giving a credit is not payment.

Daniels, J., concurs with Van Brunt, P. J.