Digest. 4. To punish as for a contempt for refusing to deliver property to a receiver, an order requiring such delivery is a necessary prerequisite. A simple demand of possession is not sufficient. (Id.) 5. Where the order appointing the receiver directed the debtor to assign and convey his lands and real estate, but contained no directions to the debtor to surren-9. der its possession: Held, that he could not be held in contempt for omitting or refusing to do what had not been commanded or required of him. (Id.) 6. In contempt proceedings a fine cannot be properly imposed arbitrarily and capriciously; but it must have a basis upon proof of damages or injury. (Id.) 7. A defendant who fails to pay over to the plaintiff money to enable her to carry on a suit for divorce, as ordered, is liable to arrest; his inability to pay it is no defense to an application for his commitment-2 Revised Statutes, 538, section 20, is only applicable to those actually imprisoned. (See Strobridge agt. Strobridge, 21 Hun, 288.) 8. Upon the appearance of a debtor before a judge, in pursuance of an order for his examination in proceedings supplementary to execution, he admitted that he had in his possession money and property sufficient to satisfy the judgment, and requested a postponement to enable him to apply the same upon the judgment. The judge thereupon made an order reciting the facts, and granting him until a day named to pay the judgment with interest, and the costs, and providing in default thereof that he be adjudged guilty of a willful contempt; it further ordered and directed that, in that case, he pay to the sheriff a fine of $384, and be imprisoned until the payment thereof, and that a commitment issue to carry this judgment into effect: Held, that the defendant could only be convicted of contempt upon the return of an attachment or an order to show cause, and that the court could not thus summarily declare the consequences of a disobedience to its orders. (Tinker agt. Crooks, 22 Hun, 579.) To authorize the court to punish a party for contempt in proceedings supplementary to execution, in refusing to pay over money or property in pursuance of its order, it must appear that the specific property or sum of money was, at the time of the service of the order for his examination, in his possession or under his control. (Id.) 10. An order punishing for contempt, in violating an injunction, can only be reviewed upon the merits or for alleged legal error, on appeal from the order. (Wat rous agt. Kearney, 79 N. Y., 496.) 11. It is within the discretion of the court whether to open or vacate the order on motion, and the exercise of this discretion cannot be reviewed here. (Id.) 12. Where a party has been brought into court on attachment, in proceedings to punish for contempt, he may be represented by attorney in the subsequent proceedings. (Id.) 13. An order punishing defendants for contempt was granted by default. On motion to vacate the order, it was alleged, in the moving papers, that the attorneys who appeared for the defendants in the proceedings had no authority. The attorney, who appeared on return of the attachment, made affidavit that he was authorized; the defendants were also personally present; the same attorney appeared before the referee, to whom it was referred to take Digest. proofs. Notice of motion for final order was served on, and service admitted by, attorneys who had appeared for defendants in the action, and who had also admitted service of the referee's report: Held, that as the attorneys thus undertook to represent defendants, the mere allegation of want of authority so to do did not invalidate the order. (Id.) 14. Upon the return of an attachment against defendant for an alleged contempt in disobeying the provision contained in a judgment of divorce herein, which required him to pay alimony and to give security for the payment thereof; and upon motion to vacate the attachment the court adjudged him to be in contempt, and ordered him to pay a fine, to give security in a specified amount for future alimony, and to stand committed until compliance with the order: Held, that the whole matter was before the court and it had jurisdiction to grant such relief. (Park agt. Park, 80 N. Y., 156.) Procedure, sec. 14, sub. 3); and that the provision of the statute of 1847 (sec. 2, chap. 390, Laws of 1847), prohibiting imprisonment for contempt in not paying costs, had no application. (Id.) 17. Defendant commenced an action in the marine court of New York city against plaintiff to recover a deposit, which was also claimed by another party. In that action costs of appeal from an order had been awarded defendant. Plaintiff thereupon commenced this action for an interpleader and procured a temporary injunction restraining defendant, her attorneys, etc., from further prosecuting or carrying on the former action, or from taking any steps to recover said deposit. Defendant's attorney thereafter issued a precept for the collection. of the costs. In proceedings to punish said attorney for contempt, held, that the injunction did not prohibit the collection of the costs, and that the attorney was justified in issuing the precept. (German Sav. Bank agt. Habel, 80 N. Y., 273.) 15. The attachment was issued upon proof of service of copy of the judgment, with demand of payment of the alimony in arrear, 1. with the costs, and the giving security as required by the judgment, and proof of defendant's failure to comply therewith: Held, that the papers served were sufficient to authorize the issuing of the writ (Code of Civil Procedure, sec. 14); that the judg ment contained all that was necessary to advise defendant of the nature of the claim made against him. (Id.) 16. Defendant claimed that the attachment should have been vacated, because based on his refusal to pay costs: Held, untenable, as it was issued for "disobedience to the lawful mandate of a court" (Code of Civil 2. CORPORATIONS. A stockholder has no right by the inherent powers of a court of equity to bring suit to wind up the business of a corporation. (Bliven agt. Peru Steel and Iron Company, ante, 280.) If a stockholder may proceed under 2 Revised Statutes, 463, section 38, which provides for dissolution when the corporation has been insolvent for a year, or has neglected or refused for a year the payment of its debts, or has suspended its business for a year, the plaintiff has not made out such a case. It is only a judgment creditor who can apply for sequestration under 2 Revised Statutes, 463, section 36. A creditor whose claim has not been prose Digest. cuted to judgment cannot so proceed. (Id.) 3. A consent or acquiescence by the trustees of a corporation to a judg- 7. ment not authorized by the statute, cannot be substituted for the methods se prescribed. (Id.) See PRACTICE. The People agt. Bruff, ante, 1. COSTS. issue of fact is left to be determined upon a trial. (Adams agt. Ward, ante, 288.) Where the plaintiff drew the demurrer and served it and noticed the argument thereof, for such services, he is entitled to the costs before and after notice of trial, as well as twenty dollars for a trial of an issue of law. (ld.) 8. Items for copies of documents cannot be allowed without an affidavit that it or they were actually and necessarily used or obtained for use. (Id.) 1. Before the additional chapters of 2. An order made on the 13th day 3. Upon an appeal to the supreme court from the decree of the surrogate removing an executor and guardian, it is proper that infant respondents should appear by different attorney than adults and tax separate bill of costs, upon affirmance. (Savage agt. Gould et al., ante, 255.) 4. From the service of the petition of appeal, the proceedings, so far as the question of costs were concerned, are to be regarded in this court, viz., costs of proceedings, before and after trial, of argument and term fees. (Id.) 5. Code of Procedure, section 307, not applicable to such appeals. (Id.) 6. It is proper to allow costs on the decision of a demurrer, though an Where the case is one where no application is necessary to the court for judgment upon the complaint if no answer had been served, the plaintiff, on decision of demurrer, is only entitled to fifteen dollars for costs before notice of trial. (Id.) 10. Where the plaintiff fails to make the indorsement upon the summons as required by section 419 of the Code of Civil Procedure, he is only entitled to fifteen dollars costs before notice of trial. (Id.) 11. A plaintiff suing executors will, under section 3271 of the Code of Civil Procedure, be required to give security for costs where it is made to appear by affidavit that he is pecuniarily irresponsible and unable for that reason to pay costs, although the action is concededly brought in good faith. (Murphy agt. Travers, ante, 301.) 12. Under the provisions of section 3251 of the Code of Civil Procedure, a party is entitled to tax ten dollars for each witness examined before trial. (Marston agt. Hebert, ante, 490.) 13. Where a judgment is reversed "with costs to abide the event," and the order is silent as to which party is to receive the costs, it means that they are to go to the Digest. one ultimately successful. (First National Bank agt. Fourth National Bank, ante, 436.) 14. To entitle a plaintiff who recovers less than fifty dollars, in an action brought in a county court, to costs, on the ground that a justice's court had no jurisdiction over the action, because it involved accounts exceeding in amount $400, he must prove not only that the sum of the accounts claimed exceeded $400, but that the sum of the accounts actually proved upon the trial was in excess thereof. (Tompkins agt. Greene, 21 Hun, 257.) 15. Costs cannot be allowed upon the granting of an ex parte order requiring the defendant to file his answer. (Edlefson agt. Duryee, 21 Hun, 607.) 16. When a settlement and discontinuance of an action will be set aside as a fraud upon the attorney's lien for costs. (See Pickard agt. Yencer, 21 Hun, 403.) 17. When an execution against the person may be issued upon a judgment for costs recovered in an action for a tort. (See Philbrook agt. Kellogg, 21 Hun, 238.) 18. Where, in an action brought against several defendants, each appears by a separate attorney and interposes a separate defense, and all succeed in their defenses, each of them is, under section 305 of the Code, entitled to a separate bill of costs, unless the severance be made in bad faith and for the purpose of increasing the costs. In this action, brought against the defendants as copartners, each appeared by a separate attorney and served a separate answer. The defendant Robert, who resided in this state, appeared by a Mr. Sawyer. The defendant James, who was a non-resident, having left the state to avoid his creditors, and having no property herein subject to attachment, was served by publication and appeared by a Mr. Day. The notice of the retainer of Mr. Sawyer for Robert was in the handwriting of Mr. Day, and the answers were identical; that of James being copied and verified in the office of the attorney for Robert: Held, that the severance of the action was in bad faith, and that but one bill of costs should be allowed to the defendants. (Williams agt. Cassady, 22 Hun, 180.) 19. Where an application is made by defendants, who have successfully interposed separate defenses, to have separate bills of costs taxed, under section 305 of the Code, the clerk has no power to refuse to allow them so to do, on the ground that the separate defenses were unnecessarily and collusively interposed. The remedy of the party aggrieved is to apply to the court by a motion, for the relief sought. (Id.) 20. Where a person brings an action, in the name of the overseer of the poor, to recover a penalty for a violation of the provisions of the excise law, without having first made complaint to the said overseer of the alleged violation, accompanied with reasonable proof thereof, the action is unauthorized, and such person is personally liable to the defendant for the costs thereof. To authorize a private person to bring such an action, the complaint made to the overseer of the poor should be so definite, and should be accompanied with such proof, as to satisfy the overseer that a penalty has been incurred, or to enable him to investigate and decide whether or not there has been a violation of the statute. (Jobbitt agt. Giles, 22 Hun, 274.) 21. When the court of appeals reverses a judgment in favor of the plaintiff, and orders a new trial, with costs to abide the event, and Digest. on the second trial the plaintiff again recovers a judgment, he cannot tax, in his favor, the costs of the reversal by the court of appeals. (First Nat. Bank agt. Fourth Nat. Bank, 22 Hun, 563.) 22. Costs awarded upon sustaining a demurrer, interposed by the plaintiff to parts of an answer, are not interlocutory, but final costs, and the plaintiff cannot recover nor assign them until judgment is rendered upon the issues in the action generally. (Armstrong agt. Cummings, 22 Hun, 570.) 23. Upon the dismissal of an appeal from a county court to the supreme court, the costs must be adjusted by the clerk, upon notice, in the usual way, and they cannot be taxed by a judge of the court, under section 311 of the Code. (Andrews agt. Long, 22 Hun, 24.) 24. Taxation of-when the party finally succeeding is entitled to the costs of an unsuccessful appeal taken by him. (See Donovan agt. Vandemark, 22 Hun, 307.) 25. Non-resident - who will be regarded as one, and required to give security for costs. (See Norton agt. Bennett, 22 Hun, 604.) 26. When sureties to an undertaking given on an appeal to the court of appeals are liable for all the costs of the action. (See Burdett agt. Lowe, 22 Hun, 588.) 27. Lien of an attorney for, under section 66 of the Code of Civil Procedure, as amended in 1879superior to right of set-off. (See Ennis agt. Curry, 22 Hun, 584.) 128. Defendant commenced an action in the marine court of New York city against plaintiff to recover a deposit, which was also claimed by another party. In that action costs of appeal from an order had been awarded defendant. Plaintiff thereupon commenced this action for an interpleader, and procured a temporary injunction restraining defendant, her attorneys, etc., from further prosecuting or carrying on the former action or from taking any steps to recover said deposit. Defendant's attorney thereafter issued a precept for the collection of the costs. In proceedings to punish said attorney for contempt, held, that the injunction did not prohibit the collection of the costs, and that the attorney was justified in issuing the precept. (German Sav. Bk. agt. Habel, 80 N. Y., 273.) 29. General term of supreme court has no power to vacate judgment as to costs which has been affirm. ed by this court, at least where no new facts are presented. (See Sheridan agt. Andrews [Mem.], 80 N. Y., 648.) COUNTER-CLAIM. See REMOVAL of Cause. Clarkson el al. agt. Manson, ante, 45. 1. In an action by the plaintiff to recover for services rendered to the defendant, the latter set up, as a counter-claim, that the plaintiff was a trustee of a manufacturing corporation, and that, by reason of his failure to file the annual report required by law, he had become personally liable for the debts of the company, some of which were held by the defendant at the time of his default, which debts he sought to set off against the plaintiff's claim herein: Held, that the counter-claim was not based upon a contract, as required by section 501 of the Code of Civil Procedure, and that it should be stricken out. (Clapp agt. Wright, 21 Hun, 240.) 2. When the plaintiff will not be allowed to discontinue an action against the objection of a defendant, who has interposed a counter |
