Randell v. Abrisqueta

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…