Schaffer v. Welkley

Cunningham, J. The defendant moved before the Appellate Division for an order granting him leave to appeal to the Court of Appeals from the judgment of affirmance entered in this action. The Appellate Division denied the motion, with ten dollars costs. Thereupon, the plaintiff taxed his costs and disbursements incurred upon said motion, and thereafter entered a judgment for the amount of such costs and disbursements. The defendant now moves to vacate the judgment so entered. The costs awarded by the Appellate Division are motion costs. (Schleicher v. Schleicher, 137 Misc. 642; affd., 230 App. Div. 802.) [673] The order of the Appellate Division should be entered in the clerk’s office. (Civ. Prac. Act, § 621; Macomber v. Sterling, 230 App. Div. 598.) These costs are collectible by execution against personal property only. (Civ. Prac. Act, § 1520; Foley v. Carter, 214 App. Div. 292, 294.) The entry of the order of the Appellate Division “ is sufficient authority ” for the collection of the costs granted in the order. (Civ. Prac. Act, § 621.) It is not necessary to enter a judgment herein, but after entry of the order an execution could have been issued against the personal property of the defendant. The motion to vacate the judgment is granted, with ten dollars costs.