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

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

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