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Digest.

4. To punish as for a contempt for issue to carry this judgment into

refusing to deliver property to a re- effect: ceiver, an order requiring such de- Held, that the defendant could livery is a necessary prerequisite. only be convicted of contempt A simple demand of possession is upon the return of an attachment not sufficient. (Id.)

or an order to show cause, and

that the court could not thus sum. 5. Where the order appointing the marily declare the consequences

receiver directed the debtor to of a disobedience to its orders assign and convey his lands and (Tinker agt. Crooks, 22 Hun, 579.) real estate, but contained no di. rections to the debtor to surren. 9. To authorize the court der its possession:

punish

a party for contempt in proceedHeld, that he could not be held

ings supplementary to execution, in contempt for omitting or refus

in refusing to pay over money or ing to do what had not been commanded or required of him. (Id.)

property in pursuance of its order, it must appear that the specific

property or sum of money was, 6. In contempt proceedings a fine at the time of the service of the

cannot be properly imposed arbi- order for his examination, in his trarily and capriciously; but it possession or under his control. must have a basis upon proof (Id.) of damages or injury. (Id.)

10. An order punishing for con7. A defendant who fails to pay tempt, in violating an injunction,

over to the plaintiff money to can only be reviewed upon the enable her to carry on a suit for merits or for alleged legal error, divorce, as ordered, is liable to on appeal from the order. (Wat. arrest; his inability to pay it is no rous agt. Kearney, 79 N. Y., 496.) defense to an application for his commitment - 2 Revised Statutes, 11. It is within the discretion of the 538, section 20, is only applicable court whether to open or vacate to those actually imprisoned. (See the order on motion, and the exerStrobridge agt. Strobridge, 21 Hun, cise of this discretion cannot be 288.)

reviewed here. (Id.)

8. Upon the appearance of a debtor 12. Where a party has been brought

before a judge, in pursuance of an into court on attachment, in proorder for his examination in pro- ceedings to punish for contempt, ceedings supplementary to execu- he may be represented by attorney tion, he admitted that he had in in the subsequent proceedings. his possession money and property (Id.) sufficient to satisfy the judgment, and requested a postponement to 13. An order punishing defendants enable him to apply the same upon for contempt was granted by de. the judgment. The judge there- fault. On motion to vacate the upon made an order reciting the order, it was alleged, in the movfacts, and granting him until a ing papers, that the attorneys who day named to pay the judgment appeared for the defendants in the with interest, and the costs, and proceedings had no authority. providing in default thereof that The attorney, who appeared on he be adjudged guilty of a willful return of the attachment, made contempt; it further ordered and affidavit that he was authorized; directed that, in that case, he pay the defendants were also personto the sheriff a fine of $384, and ally present; the same attorney be imprisoned until the payment appeared hefore the referee, to thereof, and that a commitment whom it was referred to take

Digest.

proofs. Notice of motion for final Procedure, sec. 14, sub. 3); and that order was served on, and serv. the provision of the statute of ice admitted by, attorneys who 1847 (sec. 2, chap. 390, Laws of had appeared for defendants in 1847), prohibiting imprisonment the action, and who had also ad- for contempt in not paying costs, mitted service of the referee's re- had no application. (Id.) port:

Held, that as the attorneys thus 17. Defendant commenced an acundertook to represent defend

tion in the marine court of New ants, the mere allegation of want York city against plaintiff to reof authority so to do did not in

cover a deposit, which was also validate the order. (Id.)

claimed by another party. In that

action costs of appeal from an 14. Upon the return of an attach

order had been awarded defendment against defendant for an

ant. Plaintiff thereupon comalleged contempt in disobeying menced this action for an interthe provision contained in a judg

pleader and procured a temporary ment of divorce herein, which re

injunction restraining defendant, quired him to pay alimony and to

her attorneys, etc., from further give security for the payment

prosecuting or carrying on the thereof; and upon motion to va

former action, or from taking any cate the attachment the court

steps to recover said deposit. Deadjudged him to be in contempt,

fendant's attorney thereafter isand ordered him to pay a fine, to sued a precept for the collection, give security in a specified amount

of the costs. In proceedings to for future alimony, and to stand

punish said attorney for contempt, committed until compliance with

held, that the injunction did not the order:

prohibit the collection of the costs, Held, that the whole matter was

and that the attorney was justified before the court and it had juris

in issuing the precept. (German diction to grant such relief. (Park Sav. Bank agt. Habel, 80 N. Y., 273.) agt. Park, 80 N. Y., 156.)

15. The attachment was issued upon

proof of service of copy of the CORPORATIONS. judgment, with demand of pay. ment of the alimony in arrear, 1. A stockholder has no right by the with the costs, and the giving inherent powers of a court of security as required by the judg- equity to bring suit to wind up the ment, and proof of defendant's business of a corporation. (Bliven failure to comply therewith: agt. Peru Steel and Iron Company,

Held, that the papers served ante, 280.) were sufficient to authorize the issuing of the writ (Code of Civil 2. If a stockholder may proceed Procedure, sec. 14); that the judg- under 2 Revised Statutes, 463, ment contained all that was neces- section 38, which provides for dissary to advise defendant of the

solution when the corporation has nature of the claim made against been insolvent for a year, or has him. (Id.)

neglected or refused for a year

the payment of its debts, or has 16. Defendant claimed that the at- suspended its business for a year,

tachment should have been vacat- the plaintiff has not made out such ed, because based on his refusal

It is only a judgment to pay costs:

creditor who can apply for seHeid, untenable, as it was issued questration under 2 Revised Statfor “disobedience to the lawful utes, 463, section 36. A creditor mandate of a court” (Code of Civil | whose claim has not been prose

a case.

Digest.

cuted to judgment cannot so issue of fact is left to be determined proceed. (Id.)

upon a trial. (Adams agt. Ward,

ante, 288.) 3. A consent or acquiescence by the

trustees of a corporation to a judg. 7. Where the plaintiff drew the dement not authorized by the statute,

murrer and served it and noticed cannot be substituted for the

the argument thereof, for such methods er prescribed. (Id.) services, he is entitled to the costs See PRACTICE.

before and after notice of trial, as

well as twenty dollars for a trial The People agt. Bruff, ante, 1.

of an issue of law. (ld.)

8. Items for copies of documents COSTS.

cannot be allowed without an afti

davit that it or they were actually 1. Before the additional chapters of

and necessarily used or obtained the Code of Civil Procedure went

for use. (Id.) into operation (i. e., September 1, 1880) it was necessary for a plain- / 9. Where the case is one where no tiff residing in another county

application is necessary to the bringing an action in this court to

court for judgment upon the comfile security for costs, but the Code, plaint if no answer had been seras amended, has changed the law ved, the plaintiff, on decision of on this subject. (Wiley agt. Ar

demurrer, is only entitled to fifteen noux, ante, 137.)

dollars for costs before notice of

trial. (Id.) 2. An order made on the 13th day

of April, 1880, directing a plain. 10. Where the plaintiff fails to make tiff, who was a resident of Brook

the indorsement upon the sumlyn, to file security for costs, held

mons as required by section 419 of to be correct as the law then was.

the Code of Civil Procedure, he (Id.)

is only entitled to fifteen dollars

costs before notice of trial. (Id.) 3. Upon an appeal to the supreme

court from the decree of the sur. 11. A plaintiff suing executors will, rogate removing an executor and under section 3271 of the Code of guardian, it is proper that infant Civil Procedure, be required to respondents should appear by give security for costs where it is different attorney than adults and made to appear by affidavit that tax separate bill of costs, upon he is pecuniarily irresponsible and affirmance. (Savage agt. Gould et unable for that reason to pay costs, al., ante, 255.)

although the action is concededly

brought in good faith. (Murphy 4. From the service of the petition agt. Travers, ante, 301.)

of appeal, the proceedings, so far as the question of costs were con- 12. Under the provisions of section cerned, are to be regarded in this 3251 of the Code of Civil Procourt, viz., costs of proceedings, cedure, a party is entitled to tax before and after trial, of argument ten dollars for each witness exand term fees. (Id.)

amined before trial. (Marston agt.

Hebert, ante, 490.) 6. Code of Procedure, section 307,

not applicable to such appeals. 13. Where a judgment is reversed (Id.)

“with costs to abide the event,"

and the order is silent as to which 6. It is proper to allow costs on the party is to receive the costs, it

decision of a demurrer, though an means that they are to go to the

Digest.

one ultimately successful. (First subject to attachment, was served National Bank agt. Fourth Na- by publication and appeared by a tional Bank, ante, 436.)

Mr. Day. The notice of the re

tainer of Mr. Sawyer for Robert 14. To entitle a plaintiff who recov- was in the handwriting of Mr.

ers less than fifty dollars, in an ac- Day, and the answers were idention brought in a county court, to tical; that of James being copied costs, on the ground that a jus- and verified in the office of the tice's court had no jurisdiction attorney for Robert: over the action, because it in- Held, that the severance of the volved accounts exceeding in action was in bad faith, and that amount $400, he must prove not but one bill of costs should be alonly that the sum of the accounts lowed to the defendants. (Williams claimed exceeded $400, but that agt. Cassady, 22 Hun, 180.) the sum of the accounts actually proved upon the trial was in 19. Where an application is made by excess thereof. (Tompkins agt. defendants, who have successfully Greene, 21 Hun, 257.)

interposed separate defenses, to

have separate bills of costs taxed, 15. Costs cannot be allowed upon the under section 305 of the Code, the

granting of an ex parte order re- clerk has no power to refuse to quiring the defendant to file his allow them so to do, on the ground answer. (Edlefson agt. Duryee, 21 that the separate defenses were Hun, 607.)

unnecessarily and collusively in

terposed. The remedy of the 16. When a settlement and discon- party aggrieved is to apply to the

tinuance of an action will be set court by a motion, for the relief aside as a fraud upon the attor- sought. (Id.) ney's lien for costs. (See Pickard agt. Yencer, 21 Hun, 403.) 20. Where a person brings an action,

in the name of the overseer of the 17. When an execution against the poor, to recover a penalty for a

person may be issued upon a judg. violation of the provisions of the ment for costs recovered in an excise law, without having first action for a tort. (See Philbrook made complaint to the said overagt. Kellogg, 21 Hun, 238.)

seer of the alleged violation, ac

companied with reasonable proof 18. Where, in an action brought

thereof, the action is unauthoragainst several defendants, each

ized, and such person is personappears by a separate attorney

ally liable to the defendant for the and interposes a separate defense,

costs thereof. To authorize a pri. and all succeed in their defenses, vate person to bring such an aceach of them is, under section 305

tion, the complaint made to the of the Code, entitled to a separate

overseer of the poor should be so bill of costs, unless the severance

definite, and should be accompabe made in bad faith and for the

nied with such proof, as to satisfy purpose of increasing the costs. the overseer that a penalty has In this action, brought against the

been incurred, or to enable him defendants as copartners, each ap

to investigate and decide whether peared by a separate attorney and

or not there has been a violation served a separate answer. The

of the statute. (Jobbitt agt. Giles, defendant Robert, who resided in

22 Hun, 274.) this state, appeared by a Mr. Sawyer. The defendant James, who 21. When the court of appeals re. was a non-resident, baving left verses a judgment in favor of the the state to avoid his creditors, plaintiff, and orders a new trial, and having no property herein with costs to abide the event, and Digest.

on the second trial the plaintiff thereupon commenced this action again recovers a judgment, he for an interpleader, and procured cannot tax, in his favor, the costs a temporary injunction restraining of the reversal by the court of ap- defendant, her attorneys, etc., from peals. (First Nat. Bank agt. further prosecuting or carrying on Fourth Nat. Bank, 22 Hun, 563.) the former action or from taking

any steps to recover said deposit. 22. Costs awarded upon sustaining a Defendant's attorney thereafter

demurrer, interposed by the plain- issued a precept for the collection tiff to parts of an answer, are not of the costs. In proceedings to interlocutory, but final costs, and punish said attorney for contempt, the plaintiff cannot recover nor held, that the injunction did not assign them until judgment is ren- prohibit the collection of the costs, derell upon the issues in the action and that the attorney was justified generally. (Armstrong agt. Cum- in issuing the precept. (German mings, 22 Hun, 570.)

Sao. Bk. agt. Habel, 80 N. Y., 273.) 23. Upon the dismissal of an appeal 20. General term of supreme court

from a county court to the su- has no power to vacate judgment preme court, the costs must be as to costs which has been affirmadjusted by the clerk, upon no- ed by this court, at least where no tice, in the usual way, and they new facts are presented. (Sce cannot be taxed by a judge of the Sheridan agt. Andreus (Mem.), 80 court, under section 311 of the N. Y., 648.) Code. (Andrews agt. Long, 22 Hun, 24.)

COUNTER-CLAIM. 24. Taxation of — when the party finally succeeding is entitled to See REMOVAL OF CAUSE. the costs of an unsuccessful ap

Clarkson el al. agt. Manson, peal taken by him. (See Donovan

ante, 45. agt. Vandemark, 22 Hun, 307.)

1. In an action by the plaintiff to 25. Non-resident - who will be re- recover for services rendered to

garded as one, and required to the defendant, the latter set up, give security for costs. (See Nor. as a counter-claim, that the plainton agt. Bennett, 22 Hun, 604.) tiff was a trustee of a manufactur

ing corporation, and that, by rea26. When sureties to an undertak. son of his failure to file the annual

ing given on an appeal to the court report required by law, he had of appeals are liable for all the become personally liable for the costs of the action. (See Burdett debts of the company, some of agt. Lowe, 22 Hun, 588.)

which were held by the defendant

at the time of his default, which 27. Lien of an attorney for, under debts he sought to set off against

section 66 of the Code of Civil the plaintiff's claim herein: Procedure, as amended in 1879 - Held, that the counter-claim was superior to right of set-off. (See not based upon a contract, as reEnnis agt. Curry, 22 Hun, 584.) quired by section 501 of the Code

of Civil Procedure, and that it (28. Defendant commenced an artion should be stricken out. (Clapp

in the marine court of New York agt. Wright, 21 Hun, 240.)
city against plaintiff to recover a
deposit, which was also claimed

When the plaintiff will not be by another party. In that action allowed to discontinue an action costs of appeal from an order had against the objection of a defend. been awarded defendant. Plaintiff ant, who has interposed a counter

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