#### Donegan & Swift, Respondent, *v.*Charles H. Patterson and Harry Hufnagel, Defendants, Impleaded with Norman Hubbard, Jr., Appellant.

First Department,

December 11, 1908.

Motion and order — costs — offset against judgment.

Where a defendant, sued for the removal of a judgment, alleges payment, the existence of the judgment as a lien or liability is put at issue, and hence, where the defendant has been awarded costs against the plaintiff on a preliminary motion restoring the case to the calendar after a default, the award being absolute and not to abide the event, the plaintiff is not entitled to oñset the costs against the judgment.

*350Appeal by the defendant, Norman Hubbard, Jr., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of July, 1908, as resettled.

*O. B. Gould,*for the appellant.

*T. Langland Thompson [Raymond Ballantine*with him on the brief], for the respondent.

Laughlin, J.:

This action was commenced on or about the 22d day of March, 1907, for the purpose of renewing a judgment recovered by the plaintiff’s assignor against the defendants on the 16th day of June, 1888. The appellant in his answer denies the allegation of the complaint that the judgment has not been satisfied as to him, and pleads payment of the sum of $690 in settlement and discharge of his liability by reason of the judgment. On the 14th day of November, 1907, judgment by default was entered' against the appellant and the other defendants. On a motion made by appellant to open the default, the court at Special Term imposed as a condition of granting the motion that he pay the costs of the action to date, and givé an undertaking to secure any judgment which the plaintiff might recover therein. On appeal from that order this court on the 8th day of May, 1908, modified the order of the Special Term by striking out the conditions imposed, and by vacating the judgment and directing that the cause might be restored to the calendar for the trial of short causes on application of the plaintiff, and awarded this appellant ten dollars costs and his taxable disbursements. (125 App. Div. 750.) The disbursements were taxed at thirty-one dollars and sixty-five cents. On the 12th day of June, 1908, an order was made at Special Term directing that the cause be restored to the Trial Term for short causes upon payment by plaintiff to this appellant of the amount of his costs and disbursements as thus taxed. The plaintiff then moved to have these costs and disbursements set off against the judgment upon which the action is based, and the order was granted, and the order of June twelfth was modified by restoring the cause to the calendar for the trial of short causes, without the payment of the costs and disbursements awarded to the *351appellant on the former appeal. The order from which this appeal is taken was clearly erroneous. The existence of the judgment as a lien or liability as against the appellant is at issue, and that issue cannot be determined on affidavits, but must be decided in the ordinary course of judicial procedure. It is manifest that there is no authority for offsetting the costs and disbursements, to which under the order of this court appellant is entitled, against a judgment, the existence of which as a liability against him is in litigation and has not been decided. The costs were not awarded to abide the event, and consequently appellant is entitled to have them paid and to the order making their payment a condition of plaintiff’s right to move the cause.

It follows that the order should be reversed, with ten dollars costs and disbursements.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.