p. 130Henry A. Powell, as Assignee of John C. Provost, Respondent, v. John P. Schenck, Appellant.Headnote
JPractice— an application for leave to withdraw an appeal to the Court of Appeals should he addressed to that court—procuring the preferment of a p?’eferred case before payment of costs ordered paid, is not a contempt.&nihle, that, a motion, made in an action by the plaintiff, for leave to withdraw an appeal taken by him to the Court of Appeals from an order of the General Term, which reversed an order requiring the defendant to serve a hill of particulars, should be addressed to the Court of Appeals, as the Supreme Court has no j urisdiction to make such an order.
Where an order, requiring a defendant to serve a bill of particulars, is reversed by the General Term with costs, and the motion is denied with costs and the case is preferred, the attorney for the plaintiff is not guilty of a contempt, within the definition of that offense contained in section 14 of the Code of Civil Procedure, because he procures an order, preferring the case upon the trial calendar, before the costs granted against the plaintiff by the General Term had been paid. '
_An order which, in substance, vacates the preference, unless the plaintiff pays to the defendant’s attorney the costs allowed by the General Term, is a proper -disposition of the matter.
Appeal by the defendant, John P. Schenck, from an order of the Supreme Court, made at the Kings County Special Term and ■entered in the office of the clerk of the county of Kings on the 3d ■day of April, 1896, allowing the plaintiff to withdraw an appeal taken by him to the Court of Appeals; also, from an order of the Supreme Court, made at the the Kings County Special Term and ■entered in the office of the clerk of the county of Kings on the 20th -day of May, 1896, denying the defendant’s motion to punish the ■plaintiff’s attorney for contempt, and also denying the defendant's motion to vacate an order preferring the cause upon the calendar :for trial. ^
George A. Stearns, for the appellant.
Gustave Hurlimann, for the respondent.
There are two appeals in this action before the court. The first is from an order which granted the plaintiff leave to withdraw an appeal taken by him to the Court of Appeals from an order of the
p. 131General Term which reversed an order requiring the defendant to serve a bill of particulars. This leave was granted upon condition that the plaintiff pay to the defendant the sum of forty dollars costs. The appellant .asks us to reverse this order, on the ground that the motion should have been addressed to the Court of Appeals and that the Supreme Court was without jurisdiction to make it. We think this point is well taken,- hut as it is stated, upon the briefs of both parties, that since the order appealed from was made, leave to withdraw the appeal was granted by the Court of Appeals, the defendant is not prejudiced by the order and justice will be promoted by reversing it, without costs.
The second appeal is from an order which denied a motion to .punish the plaintiff’s attorney for contempt, and also denied a motion to vacate an order preferring the case upon the calendar for trial. It appears that the order which required the defendant to serve a bill of particulars was reversed by the General Term, with ten dollars costs and disbursements, and the motion was denied, with ten dollars costs. The alleged contempt consisted in procuring the order preferring the case on the calendar before the costs granted by the General Term had been paid. We are of the opinion that this act did not constitute a contempt within the definition of that offense in section 14 of the Code of Civil Procedure. . The case was one which was entitled to he preferred for trial. (Code Civ. Proc. § 791, subd. 5.) Assuming that the defendant is right in his contention that the plaintiff was not justified in making a motion for preference while the costs were unpaid, still, upon the defendant’s motion to vacate the order which granted the preference, the whole case was before the court and it was entirely proper for the Special Term then to make such an order as the facts warranted. The order appealed from in substance vacated the preference, unless the plaintiff paid to the defendant’s attorney the costs allowed by the General Term.
We see no reason to interfere with this order, and it must be affirmed, with ten dollars costs and disbursements.
All concurred.
Order granting leave to withdraw appeal to the Court of Appesffs reversed, without costs. Order denying motion to punish for *cdfi
p. 132tempt and also denying motion to vacate an order to prefer the case upon the calendar for trial affirmed, with ten dollars costs and disbursements.