The delay intervening without his fault before notice of taxed bill, is not computed as a part of the time limited within which he is bound to pay.

If an order awards (absolutely or as an optional condition) costs or disbursements without liquidating the amount, the successful party to whom they are awarded must have them taxed or liquidated by or under the direction of the court before he can issue execution.86

87

89. Execution upon an order.]- Under the statute substituting execution against personal property, for proceedings by attachment for contempt, to collect costs of an order, the execution issues, of course, without leave, and the same rule applies to the like execution, when issuable, to enforce payment of any other sum of money absolutely directed, by an order, to be paid,ss unless the execution is to run in favor of some person having an interest in compelling the payment, other than the one to whom the money was awarded by the order, or unless against an executor, adminis trator, or trustee, etc., necessarily suing in a representative capacity.

89

86 Eckerson v. Spoor, 4 How. Pr. 361, 3 Code Rep. 70.

PARKER, J., said: "A party can in no case tax his own costs, and proceed to collect them by execution; nor can an execution be issued in any case, unless the amount in dollars and cents has first been adjudged by the court. In case of final judgment, the judgment-roll is the foundation for the execu tion; and in case of interlocutory costs, or costs ordered to be paid on motion, the amount should be ascertained and stated in the order of the court, and execution awarded [citing People v. Nevins, 1 Hill, 154, 158]."

The party against whom an order to pay forthwith being entitled to twentyfour hours at the least, a default entered the same day is irregular. Winans ads. Van Name, 3 City H. Rec. 156.

87 Herring v. Hallenbeck, 1 How. Pr. 89 (costs awarded for opposing when moving party did not appear); S. P., in equity before the Code, Poillon t. Houghton, 2 Sandf. 649; Wellman v. Frost, 38 Hun, 389.

88 N. Y. Code Civ. Pro., § 779; Weitzel r. Schultz, 3 Abb. Pr. 468; s. c., 13 How. Pr. 191; to the same effect, Mitchell v. Westervelt, 6 How. Pr. 265, aff'd, Id. 311, note; Lucas v. Johnson, Id. 121.

89 For such an execution leave is expressly required by N. Y. Code Civ. Pro., § 779.

In Meacham v. Dodge, Wright (Ohio), 375, B. for the use of M. sued D. D. got judgment for costs, and sued out a fi. fa., which was returned non est. He then sued out a scire facias against M. to show cause why judgment should not be had against him. Demurrer overruled, and D. had judgment.

Writ of error.

Per curiam: "The cestui que trust is the actor in fact, though he use the name of the trustee; because he has the legal interest. He occupies a similar relation to the subject as is occupied by an attorney, and may be proceeded against in the same way, by order and attachment. This is a more convenient way than by sci. fa., and we think the writ does not lie." Reversed.

90

This principle applies to orders in special proceedings as well as actions, including orders entered on determining a petition. As against the guardian ad litem of an infant plaintiff, leave is not necessary."

If either the person entitled to or the person charged with the payment has died, the better practice is to apply for leave.

If one of several joint parties charged with payment has died, the execution may issue, of course, against the survivors.92

FORMS.

114. Order vacating order of arrest, on condition.

115. Order with conditions and consent thereto.

116. Clause referring to parts of another document.

117. Order denying motion to vacate a previous order which appointed a time that has now passed.

118. Order reinstating previous order without prejudice to proceedings to punish for its disobedience.

119. Clause in order granting stay on condition of immediate appeal.

120. Clause in order staying pro-
ceedings for purpose of ap-
peal.

121. Clause dispensing with
vice.

ser

90 See N. Y. Code Civ. Pro., § 3347, subd. 6, § 3343, subd. 20; N. Y. Gen. Rule No. 27.

91 If costs are awarded against an infant plaintiff they may be collected by execution or otherwise from the guardian as if he were plaintiff. N. Y. Code Civ. Pro., $ 3249, 469.

92 Lucas v. Johnson, 6 How. Pr. 121 (so held under the Act of 1847).

Caption of an order of court93 in an action.94

At a special [or, trial] term of the [Supreme] Court [may include of the State of New York] held in and for the County of [New York] at [the County Court House in the Borough of Manhattan in said county], on the

of [Or, At a term of the County Court for the County of [Or, At a stated term, etc., or, adjourned term of the Circuit Court of the United States for, etc.]

Present- Hon. [John Duer], Justice.

Caption of an order made at an appellate division.

At a term of the Appellate Division of the Supreme Court for the [First] Department, held at the [Appellate Division Court House in the Borough of Manhattan, County of New York] on the day of

19

FORM No. 95.

Caption of order made at Special Term adjourned to chambers.97

At a Special Term of the Supreme Court for the
County of
held at the chambers of Jus-

96 Enough names to identify the action is sufficient, adding "and others," unless an intention to refer in the body of the order to the 66 above named," makes it desirable to specify in detail.

97 Under N. Y. Code Civ. Pro., $ 239. See paragraph 17, p. 216 (above). See also paragraph 121, page 135, of this volume.