
    WEITZEL a. SCHULTZ.
    
      New York Common Pleas;
    
    
      Special Term, November, 1856.
    Order for Costs.—Remedy for Non-payment.
    Whenever there is an order of the court directing the payment of costs, process in the nature of fieri facias may issue against the personal property of the party ordered to pay them, (under Laws of 1847, 491, ch. 390), without application to the court, upon expiration of the time prescribed for payment.
    If such process is irregularly or prematurely issued, the party aggrieved will have a remedy by motion, or by action.
    Application for leave to issue execution.
    This action was brought by Ann S. Weitzel administratrix of William Weitzel, against Peter Schultz. Judgment against defendant was entered by default, but on his moving to open his default and be let in to defend, an order was made that he be permitted to do so, but that the judgment stand as security. The cause was thereupon tried before a referee, who reported in favor of the plaintiff for the amount for which judgment had been entered. The referee’s fees, and the plaintiff’s costs allowed by statute upon these proceedings, together with an allowance of fifty dollars granted by the court, amounted in all to $135,—and the court, by an order made June 25, 1856, at special term, by Judge Daly, directed that the defendant pay this amount of costs.
    The plaintiff now moved upon affidavits showing the failure of defendant to make the payment prescribed, for leave to issue execution.
    
      Albert Matthews, for the motion.
    • Beebe & Donahoe, opposed.
   Brady, J.

This is an application for leave to issue an execution against the defendant, to collect costs which were ordered to be paid by the defendant, by order of Judge Daly, made June 25, 1856.

The counsel for the plaintiff seemed to think an application necessary, inasmuch as the right to issue the execution depended upon the contempt of the defendant in not complying with the order, and the consequent necessity of satisfying the court that such contempt had been committed. The decisions on the subject are conflicting. In Eckerson a. Spoor (4 How. Pr. R., 371), and Boyce a. Bates (3 How. Pr. R., 495), application was held to be necessary; and in Lucas a. Johnson (6 How. Pr. R., 121), and Mitchell a. Westervelt (6 How. Pr. R., 311, aff’g. S. G. 1b., 265), the opposite view is entertained. In the former case the view expressed is that the process is founded on the order of the court directing the payment, and not on the contempt of the party in not paying the costs. This seems to be a rational interpretation of the statute of 1847, the language of which is:—“Process in the nature of a fieri facias against personal property may be issued for the collection of such costs, founded on such order of the court.” (Laws of 1847, 491). Justice Hand, in Mitchell a. Westervelt, places the right to issue the execution on the ground that by the act of 1840, (Laws, 333) a precept to enforce the payment of costs might issue without demand or application to the court, and that the act of 1847 only substituted process against goods for that against the body, without changing the practice in obtaining it. I think this view is correct, and approve also of the construction of the statute of 1847, adopted in Lucas a. Johnson, although it may be doubted whether the words “ founded on such order of the court” may not refer to the order directing the execution to issue.

Wherever, therefore, there is an order directing the payment of costs, a process in the nature of a fieri facias may issue against the personal property of the party directed to pay them, without application to the court, on the expiration of the time allowed for payment. If irregularly issued, that is, not in conformity with the order, or before the expiration of the twenty days allowed for payment, the party proceeded against will be relieved on motion, or can enforce his remedy by action. His adversary assumes the responsibility, and. must respond if in error.

No costs to either party on this motion. 
      
       The order was made at special term. That there is a distinction between the mode of collecting costs directed by the court, to be paid, and that provided where the payment is directed by a judge out of court,—e.g. on supplementary proceedings,—see Hulsaver a. Wiles (11 How. Pr. R., 446; S. 0., 2 Ante, 510).
     