Randell v. Abrisqueta

20 Abb. N. Cas. 292, 2 N.Y. City Ct. Rep. 303

Opinion

McAdam, Ch. J.

The defendant served his answer in time, but it was returned by the plaintiff, on the ground that because the defendant owed $10 motion costs, his proceedings were stayed, and that he could not make his defense until the costs were first paid (Code Civ. Pro. § 779; 3 Abb. N. C. 50; 4 Id. 13; 54 How. 23).

’ This is a mistaken notion of the rule. The provision of the Code (§ 779) “ was intended to prevent an onward movement in an action by a party who owed costs of a motion” (Bigler v. Nat. Bk. of Newburgh, 26 Hun, at p. 520), but was not intended to prevent a party moved against from asserting his natural and legal right of self-defense. In Lyons v. Murat (4 Abb. N. C. 13; s. c., 54 How. Pr. 23) the plaintiff, who owed motion costs to the defendant, was held stayed, until payment, from serving a reply to a counterclaim pleaded by the defendant. But the plaintiff was the aggressor in that case. He was the moving party, and liis action was in the nature of an onward movement against the defendant, and the court stayed his further prosecution of the action until costs due had first been paid. That case extends the rule as far as it can be carried. It does not reach the question in the form in which it is now presented.

It follows that the motion for judgment, as by default for want of an answer, must be denied.