Imágenes de páginas
PDF
EPUB

FOURTH DEPARTMENT, OCTOBER TERM, 1880.

Held, that the money paid to discharge the mechanic's lien should be deducted from the avails of the property, and that being done the balance was insufficient to satisfy the judgment.

THOMAS VAN TUYL, APPELLANT, v. ERASTUS W. PARKER, RESPONDENT.

Order modified by reversing so much as refuses to strike out the award of costs and set aside the execution, and the motion to that effect granted, and the residue of the order affirmed without costs to either party. Held, that the award of costs was irregular because not in the discretion of the court. (Old Code, §§ 304, 305.) CATHARINE J. PRICE AND REUBEN PRICE, RESPONDENTS

v. NATHANIEL L. PALMER, INDIVIDUALLY AND AS EXECUTOR OF MARGARET L. PALMER, DECEASED, APPELLANTS, IMPLEADED, &c.

Judgment affirmed, with costs, on opinion of RUMSEY, J., at special term; RUMSEY, J., not sitting.

MARTIN TIMAN, ADMINISTRATOR, &c., RESPONDENT, V. THOMAS E. KINNEY, APPELLANT.

Judgment reversed, and new trial ordered before another referee, costs to abide event, unless plaintiff shall consent to reduce the amount of the judgment by the sum of $100, with interest thereon, from the time of the commencement of the suit, in such event the judgment, as so modified, is affirmed, without costs of this appeal to either party.

SAMUEL G. BEACH, RESPONDENT, v. JACOB SKILLMAN, APPELLANT, IMPLEADED WITH JOHN HAY.

Order affirmed, without costs.

Memorandum by HARDIN, J.; RUMSEY, J., not sitting.

LYMAN H. GRANGER, APPELLANT, v. GEORGE W. CROUCH AND OTHERS, RESPONDENTS.

Order appealed from affirmed, without costs.

[blocks in formation]

ELIZABETH H. EASTMAN, APPELLANT, v. DANIEL E. STARR, RESPONDENT, IMPLEADED, &C.

Stay of proceedings, after entry of judgment-when it cannot be granted without security being given-Code of Civil Procedure, §§ 613, 618- —a stay will not be granted because the defendant is applying, in another court, for a discharge under the Two-Third Act.

During the pendency of this action and prior to the recovery of a judgment herein, the defendant procured from the Court of Common Pleas of the City of New York an order directing him to make an assignment of all his property, and discharging him from his debts, under the "Two-Third Act." Thereafter this order was, upon the plaintiff's application, vacated and the discharge canceled on the ground that it was fraudulently and irregularly procured. From this last order the defendant appealed to the General Term of the Common Pleas, and procured a stay of all proceedings in the Court of Common Pleas during the pendency of such appeal. Thereafter the plaintiff having recovered a judgment in this action and instituted proceedings to procure the appointment of a receiver, the defendant obtained an order staying all proceedings in this action pending the stay granted by the Common Pleas.

Upon an appeal from that order, Held, that the stay of procedings was in effect an injunction staying proceedings upon a judgment for a sum of money, within sections 613 and 618 of the Code of Civil Procedure, and could only be granted upon the payment of the amount thereof into court, or upon security therefor being given as therein provided.

HUN.-VOL. XXII.

30

[465]

FIRST DEPARTMENT, SEPTEMBER TERM, 1880.

That in the absence of any averment of fraud or error, it would be subversive of right and contrary to precedent to stay the enforcement of a valid and regular judgment, without statutory authority, merely because another court might hereafter decide that the defendant was entitled to be discharged from his debts.

That the order should be reversed.

APPEAL from an order made at a Special Terin, staying all proceedings on a judgment recovered by the plaintiff, pending a stay granted by the General Term of the Common Pleas, in a certain proceeding instituted in that court by the defendant to obtain his discharge as an insolvent debtor under the Two-Third Act.

This action was commenced in January, 1879, to recover the sum of $15,000, due upon a bond executed by the defendant Starr and one Riker. In August, 1879, the defendant Starr applied to the Court of Common Pleas of the City of New York to be discharged from his debts, and thereafter, and in October, 1879, procured an order directing him to make an assignment of all his property, and discharging him from his debts. The plaintiff thereafter procured an order vacating the orders obtained by the defendant, and canceling and setting aside the discharges, on the ground that they had been fraudulently and irregularly procured. From this order the defendant appealed to the General Term of the Common Pleas, and procured an order staying all proceedings in that court during the pendency thereof.

The plaintiff having recovered a judgment herein in March, 1880, upon which an execution had been returned unsatisfied, moved for the appointment of a receiver, with a view of reaching certain property owned by the defendant. Thereupon the defendant moved for and obtained an order staying all proceedings herein, on the part of the plaintiff, pending the stay granted by the Court of Common Pleas.

George S. Hastings, for the appellant.

Orlando L. Stewart, for the respondent.

BARRETT, J.:

We think the stay should not have been granted. The plaintiff has a perfectly valid judgment against the defendant which he

FIRST DEPARTMENT, SEPTEMBER TERM, 1880.

seeks to enforce. That is a right expressly guaranteed to him by law. The Code of Civil Procedure (S$ 613, 618), following the Revised Statutes, forbids an injunction staying proceedings upon a judgment for a sum of money unless the amount of the judgment be paid into court or security therefor be given. The present order staying proceedings was the equivalent of such an injunction. The form was of no consequence. Further, upon the facts presen ed there was no basis for the stay. The defendant had no defense to the action which resulted in the judgment, none to the judgment itself. All that he claims is a hope that his proceedings, under the Two-Thirds Act, in the Court of Common Pleas may ultimately result in an effective discharge. The fact that that court, pending the hearing therein, has granted a stay of the creditor's. proceeding in that matter, cannot avail the defendant here. There is no interdependence as to the proceedings before the officer in the Court of Common Pleas and upon the judgment of this court. There being no averment of fraud or error it would be subversive of right and contrary to precedent to stay the enforcement of a regular and valid judgment, without statutory authority, merely because another court may hereafter decide that the defendant is entitled to a discharge.

The order appealed from should be reversed, with $10 costs, and disbursements, and the stay vacated.

Present-DAVIS, P. J., BRADY and BARRETT, JJ.

Order reversed, with $10 costs, and disbursements.

FIRST DEPARTMENT, SEPTEMBER TERM, 1880.

THOMAS J. POPE AND ANOTHER V. GEORGE PERAULT, RESPONDENT.

HENRY H. MORANGE, APpellant.

The testimony taken by a referee must be filed with his report-General Rule No. 30-Stenographer need not deliver notes until his bill is paid-effect of allowing the referee to use them as the basis of his report.

Under General Rule No. 30, the testimony taken before a referee must be filed with his report, and until this is done the filing is incomplete, and the time within which exceptions to the report must be filed and served does not begin to run.

Although a stenographer is not obliged to part with his notes until his bill has been paid, yet if he do deliver them to the referee to be examined by him and used as the basis of his report, he cannot limit the effect of such delivery, and it is the duty of the referee to file them with his report, even though the fees of the stenographer remain unpaid.

APPEAL from an order made at a Special Term confirming the report of a referee, and from an order denying a motion to compel the minutes of the testimony taken before the referee to be filed.

The appellant, H. H. Morange, Jr., was formerly the attorney for the defendant herein. In December, 1878, other attorneys were substituted in his place in pursuance of an order which required the defendant to give a bond to pay any fees which might be ascertained to be due to Mr. Morange. On a reference, after a hearing had before the referee, the latter made a report, by which he found that nothing was due to Mr. Morange. This report was, on motion of Mr. Morange, set aside and a new hearing ordered by an order made at a Special Term, which order was, however, reversed, upon an appeal taken by the defendants to the General Term. The testimony had been taken by a stenographer, who had delivered his notes to the referee to be used by him in making his report, but with directions that they should not be delivered to } either party, or filed until his fees had been paid. It was claimed that the stenographer had been employed under an agreement that each side should bear one half of the expense, and that Mr. Morange refuses to pay his one-half.

« AnteriorContinuar »