Opinion
Argued February 24, 1880
Decided March 2, 1880
Samuel Hand, for appellants. Lewis Saunders, for respondent.
The injunction clause in the order did not prohibit the collection of the costs awarded, but the prosecution of the action, or any steps to recover the $400 on deposit in the name of Habel.
Under these circumstances, the costs were collectible and the attorney was justified in issuing the precept. If it had been intended to prevent the collection of the costs, the order should have been broad enough to cover them. That it was not so intended, is shown by the fact sworn to at folio twenty-nine, that the costs became due, and an execution could have been issued for their collection before this action was commenced, and that the omission to do so was casual.
The orders of the Special and General Terms should be reversed and motion denied, with $10 costs of opposing motion and costs of appeal to the General Term and to this court.
All concur.
Ordered accordingly.