Stewart v. Schultz — 3 Abb. Pr. 383

Majority

p. 383

STEWART against SCHULTZ.

Supreme Court, Second District; General Term,

Oct., 1867.

Headnote

Double Costs.—Injunction Suits.

The provisions of 2 Rev. Slat, 619, § 24, snbd. 1,—giving increased costs to public officers—do not apply to an injunction suit brought to restrain a public officer from doing a threatened act, injurious to the plaintiff.

Appeal from an order determining a question of costs.

This action was brought by Matthew W. Stewart against Jackson S. Schultz and others, Metropolitan Police Commissioners and members of the Metropolitan Board of Health, to obtain an injunction restraining the defendants from interfering with the business of the plaintiff. A temporary injunction was granted. The injunction was afterwards dissolved, and the action discontinued “ on payment of taxable costs.”

On taxation of costs before the clerk, a question was made as to the allowance of double costs, to any of the defendants, as public officers. .From so much of the clerk’s adjustment as allowed increased costs, an appeal was taken to the special

p. 384

term, .where a retaxation was directed. The proceedings ai special term are reported 33 Sow. Pr., 3.

The defendants now appealed from the order at special term denying double.costs and directing retaxation. ■

George Bliss, jr., for the appellants.

Abraham R. Lawrence, jr., for the respondent.

I think this case is not within the statute giving double costs, or taxed costs and one-half thereof in addition. (2 Rev. Stat., 617, § 24, subd. 1.)

1. The only actions against public officers to which the statute applies are those brought for some act done by such officer by virtue of his office, or for the omission by him to do some act which it was his duty to perform.

The only purpose-of the present action was to restrain the defendants from doing a threatened or anticipated act alleged to be injurious to the plaintiff.

The plaintiff did not claim to recover damages, nor ask for relief, either by reason of acts done or omitted; he sought to prevent certain official actions contemplated by the defendants. Such a case is not within the statute.

This was the ground on which Justice Ingraham disposed of the question at the special term, and I fully concur in it.

2. I think the statute, when adopted, applied exclusively to actions and proceedings in courts of law, and not to suits in chancery, and consequently it is not now applicable to actions of purely equitable cognizance.

I am in favor of affirming the order.

Leonard, P. J., concurred.

Order affirmed.

Footnotes

* Present —Leonard, P.J., Fullerton and J. C. Smith, JJ.