Dows v. Boughton

3 Hill & Den. 452

• Court: New York Supreme Court
• Decided: July 15, 1842
• Status: Published

Opinion

By the Court, Bronson, J.'

We cannot amend the record by increasing the amount of the recovery, without endangering the lien which the plaintiffs have obtained by docketing the judgment; and by amending the writ offieri facias now in the sheriff’s hands, we might, perhaps, affect the levy upon personal property. As to rendering a second judgment in the same suit, either by way of suggestion or otherwise, I am not aware of any precedent for such a practice, exceptan the actions of account and partition, and I think it cannot be done. The defendants were let in to defend as a matter of favor after a judgment had been regularly entered against them, and if they will not now pay the additional costs to which the plaintiffs have been put, they can have no just ground for complaint if the payment of those costs is enforced in-the only way which will not work any further prejudice to the plaintiffs than they have already suffered by the delay of their proceedings. Under the former practice of the court, there can be no doubt that these costs might be collected by attachment, and where there was formerly a remedy of that kind it may still be pursued. (2 R. S. 534, § 1, sub. 8.) And this is so, although the party has an adequate remedy in another form. (Brockway v. Copp, 2 Paige, 578.) On service of a copy of the order now to be made, and a demand of the costs which have been taxed, the defendants must pay the same, with the costs of this motion, or an attachment may issue against them.

Ordered accordingly.