Horton v. Buskirk , 1 Barb. 421 ( 1847 )

Harris, J.

The circumstances of this case certainly seem to justify the suspicion that Buskirk, so long as he supposed the judgment which had been actually assigned to him to be a valid judgment, was willing to rely upon it; and that this application was an expedient, resorted to after he ascertained that the master had reported against the validity of the judgment which had been presented to him as a lien upon the share of Penfield in the premises to be sold. But as Buskirk swears positively to the mistake, and as his affidavit is corroborated by the affidavits of Meigs, the plaintiff in the judgment, and of the attorney who drew the assignment, I do not feel at liberty to deny the application. Before, however, the petitioner can be permitted to prove his judgment, he must pay to the solicitor for the opposing creditors the costs of resisting the claim presented by him before the master upon the assignment of the other judgments, to be taxed, and the costs of opposing the motion made in October last, and also the costs of opposing this motion. If within ten days after service of a taxed bill of said costs the petitioner shall pay the same, then it may be referred to the master who executed the former reference, to take proof of the judgnient described in the petition, and which is claimed to be a lien upon the share of Penfield in the premises sold. And for that purpose he may be allowed thirty days after the time for paying the costs shall expire. The costs of such reference must also be paid by the petitioner. If he shall fail to pay the costs within the time limited, this motion to be denied with costs.