Smith v. Martin

Decided August 15, 1836

New York Supreme Court · decided 1836-08-15

A new trial was granted on payment of costs. In the bill of costs were taxed the sheriff’s fees for continuing the advertisement of the sale of the defendant’s property under the execution issued in the cause, subsequent to an order to stay proceedings on the execution until the decision of the court on a case made for a new trial.

Decided 1836-08-15

¶1By the Court,

Nelson, J.

¶2[591] Where proceedings are stayed upon an execution until the decision of a non-enumerated motion, and the motion is denied, and the advertisement has been continued in the mean time, the party against whom the process issued is liable to pay the expense of the advertisement; but he is not so liable where the proceedings are stayed for the purpose of enabling the party to move for a new trial on a case made. Let there be a relaxation of the costs.