86 N.Y.S. 1022 | N.Y. App. Div. | 1904
A verdict was rendered in this action in May, 1902, in plaintiff’s favor for a sum of money as damages for defendant’s conversion of personal property. Ho judgment had been entered when, on May 1, 1903, plaintiff applied for and was granted an order of arrest in the action; the following day the defendant was taken into custody and released upon giving bail on the 21st of May, 1903. The defendant procured and caused to be served an order to show cause why the defendant should not be relieved from imprisonment, but neglected to show in his papers that judgment had not been entered since the order of arrest was granted' and- executed. The motion brought on to be heard by the order to show cause resulted in an order granting it- and relieving the defendant from imprisonment by virtue of the order of arrest. That order was evidently based either on the fact that the plaintiff- had been guilty of gross laohes in delaying for a year the entry of judgment, or on the fact that the plaintiff had not entered judgment within ten days after it was within his power to do so (See Code Civ. Proc. § 572), or both. On appeal this court reversed that order and held that an order of arrest might properly issue after trial and before judgment; that the delay of a year before entering judgment or applying for an order of arrest could not deféat plaintiff’s right to the remedy upon the doctrine of laches; that it was incumbent upon the defendant, when seeking
Upon the argument of the motion for leave to renew the plaintiff insisted that such leave be denied for the reason that the costs of the former motion, taxed under the order of this court of November 13, 1903, had not been paid. The defendant insists that inasmuch as the order of November 13, 1903, and notice of its entry were not served until November 23, 1903, the ten days mentioned in section 779 of the Code of Civil Procedure had not run, and hence that at the time of the granting of the order appealed from his. proceedings were not stayed on account of the non-payment of motion costs. That the costs and disbursements of an appeal from an order-of the Special Term are “ costs of a motion,” as these words are used', in section 779 of the Code, is settled in this department. (Hunt v. Sullivan, 79 App. Div. 119, citing Phipps v. Carman, 26 Hun, 518 ; McIntyre v. German Savings Bank, 59 id. 536.) It is.
The order should be reversed and the motion denied.
All concurred.
Order reversed, with ten dollars costs ,and disbursements.