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Stewart v. Schultz

50 Barb. 192 Court N.Y. Sup. Ct. Decision date 1867-10-12 English

Delivered by James C. Smith, J.

Contents

Majority

p. 192
Matthew W. Stewart, vs. Jackson S. Schultz and others, constituting the Metropolitan Board of Health.

Headnote

The only actions to which the statute giving double costs, (2 B. S. 617, § 24, stdid: 1,) applies, are those brought for some act done by an officer, by virtue of his office, or for the omission by him to do some act which it was his official duty to perform. • )
A case in which the plaintiff does not seek to recover damages, nor ask for relief either by reason of acts done or omitted, but seeks to prevent certain official action contemplated by the defendants, is not within the statute. .
The statute, whén adopted, applied exclusively to actions and proceedings in courts of law, and not to suits in chancery; and is not now applicable to actions of purely equitable cognizance.
PPEAL from an order made at a special term, on appeal from a taxation of costs by the clerk, directing a re-taxation.
The object of the action was to restrain the defendants from interfering with, or hindering the plaintiff in his business as a butcher. • An injunction was granted, which was afterwards dissolved, and the action was ordered to be discontinued on payment of taxable costs. On taxation, the clerk disallowed the costs of the attorneys for a portion of the defendants who had appeared separately, but allowed double costs, including disbursements, to certain other defendants.
A. R. Lawrence, Jr. for the plaintiff.
George Bliss, Jr. and Brown, Hall & Vanderpool, for the defendants.

By the Court,

I think this case is not within the statute giving double costs, or taxed costs and one half thereof in addition. ( 2 B. 8 . 617, § 24, subd. 1.)

1. The only actions &c. 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 official duty to perform.

p. 193
The only purpose of the present action was to restrain the defendants from doing a threatened or anticipated act alleged to he injurious to the plaintiff. The plaintiff did not claim to recover damages, nor ask for relief either hy reason of acts done or omitted, but sought to prevent certain official action 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 special term, ( 33 How. Pr. 3 ,) and I fully concur in it.

[New York General Term,

October 12, 1867.

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.

Order affirmed.

Leonard, Fullerton and J.

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