
    Charles Richman, Respondent, v. Solomon Bonewur, Appellant.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Motions and orders — Motion papers — Notice of motion — Necessity. Costs — Payment and enforcement thereof — In general — Costs imposed on granting favor — Costs on opening default.
    Where, on defendant’s motion, an order is made and entered opening his default and requiring him to deposit the amount of the judgment in court on or before a certain date and pay ten dollars costs, a subsequent order, entered oh plaintiff’s motion without notice to defendant, requiring the costs also to be paid before said date, is erroneous.
    The defendant having made the deposit required by the original order before the date specified, his default was opened and the judgment was vacated; and a subsequent order directing the clerk to pay to plaintiff the moneys deposited by defendant is unauthorized.
    The costs imposed by the first order, if not paid by defendant, could be included in a judgment in favor of plaintiff, if successful; and defendant could not be deprived of his day in court for his refusal to pay them.
    Appeal by the defendant from two orders in favor of the plaintiff rendered in Municipal Court of the city of Hew York, fifth district, borough of Manhattan.
    Herman J. Bubensteih, for appellant.
    Samuel Rosenberg, for respondent.
   Gildersleeve, J.

The defendant appeals from two orders of the Municipal Court denying his motion to open his default, the facts relative to which are. as follows: On February 15, 1907, an order, based upon an affidavit and order to show cause, was made, opening the default' of the defendant herein, upon the ground that such default was caused by “ excusable neglect,” upon condition “ that the defendant deposit the amount of the judgment in court, on or before February 15, 1907, and pay to the plaintiff the sum of $10 costs,;” and the case was by said order set down for trial on March 7, 1907. On February 19, 1907, four days after the malting of this order, another order was entered which contained the following recital: “ Ordered, That th'e said motion to open the default is hereby granted upon the payment by the defendant of the sum of $10 costs and the defendant to deposit the amount of the judgment herein with the clerk of this court. The said costs and the said deposit to be made on or before the 15th day of February, 1907, otherwise denied with $10 costs.” • This last order appears to have been based upon an affidavit, made by the plaintiff’s attorney, to the effect that, on the 11th day of February, 1907, a motion was made by the defendant to open his default, which motion was granted, upon the payment of ten dollars costs to the plaintiff and the deposit by the defendant with the clerk of the amount of the judgment on or before February 15, 1907, and that, on the last mentioned day, the defendant did deposit the amount of the judgment, but had not paid the ten dollars costs imposed and, therefore, the plaintiff asked that the defendant’s motion be denied. At the foot of this order is another order, dated February 20, Í907, directing the clerk "of the court to pay over the sum of sixty dollars and sixty-eight cents now .on deposit with him ” to the plaintiff’s attorney. The defendant’s attorney promptly obtained an order to show cause why the order of February nineteenth and the order directing the clerk to turn over the amount on deposit should not be vacated and why the action should nob be restored to the calendar and the default of the defendant be opened. This motion was denied. In the affidavit used by the defendant’s attorney on the last motion, he testified that he appeared on March 7, 1907, the time fixed for the trial of the action by the order of February fifteenth, and then learned for the first time that the order of February nineteenth had been entered and that the money deposited by the defendant had been paid to the plaintiff’s attorney. He further testified that no notice of an application for the order of February nineteenth, nor notice of its entry, had ever been given or served upon him; and this is not disputed by plaintiff. It will be observed that the order of February fifteenth, although it required the deposit of the amount of the judgment on that day, did not require that the costs should be paid on February fifteenth; and the defendant’s attorney had, in the absence of any direction in the order, at least a reasonable time after service upon him of a copy thereof and notice of its entry in which to pay said costs. The order of February fifteenth was not vacated by the order of February nineteenth, and this last order was made without notice and contained provisions impossible to be complied" with. Those provisions required the defendant’s attorney to deposit the amount of the judgment and costs on February fifteenth, four days prior to the making of the order; and it set the case down for trial on February 27, 1907, although the case had already been set down for trial on March 7, 1907, by the order of February fifteenth. The effect of the order of February fifteenth, accompanied by the deposit of the amount of the judgment into court, was to vacate the judgment already entered. That the plaintiff’s attorney and the court so regarded it is evidenced by the fact that the order of February nineteenth fixed a day for trial; and, if the judgment still remained in force, another trial would be unnecessary. That being so, the direction to pay the money on deposit to the plaintiff’s attorney was wholly unauthorized. Section 256 of the Municipal Court Act provides that the court may, as a condition for opening a default, require the defendant to deposit the amount of the judgment into court; but that amount', however, must remain on deposit with the clerk, until the right of the plaintiff thereto has ripened into a judgment; and its payment to the plaintiff’s attorney prior to that time cannot legally be directed by the court. Hot the slightest reason is shown for a denial of defendant’s last motion to vacate the order of February nineteenth and to permit him to have his day in court. The court had previously opened the default by its order of February fifteenth on the ground cf excusable neglect ” and, so far as appears, the same condition of affairs existed when the order of February nineteenth was made. The reason given by the court below, that the defense of usury, interposed by an endorser, "did not require a disturbance of the judgment, is not sustained by the record. The pleadings seem to have been oral, and indorsed upon the summons is the following: “ G. D. B. of P. Payment.” If those characters mean anything, the defense would seem to have been a general denial and payment; and, so far as appears by the record, there is no defense of usury. Even if the defendant had absolutely refused to pay the ten dollars costs imposed, he could not have been deprived of his day in court. The costs imposed and unpaid could be included in the judgment in favor of the plaintiff if successful. Farber v. Flauman, 30 Misc. Rep. 627; Fallon v. Crocicchia, 52 id. 503.

Gut and Bruce, JJ., concur.

Orders reversed and new trial ordered, with costs to appellant.  