Stewart v. Schultz — 34 How. Pr. 31

Majority

p. 31

SUPREME COURT.

Mathew W. Stewart agt. Jackson S. Schultz and others, Commissioners of the Metropolitan Board of Health; Thomas C. Acton and others, Commissioners of the Metropolitan Police, constituting The Metropolitan Board of Health.

Headnote

Where an action is brought against public officers (Board of Health) to restrain them by injunction from doing a threatened ór anticipated act, alleged to be injurious to the plaintiff—-the plaintiff neither claiming to recover damages, nor asking for relief, either by reason of acts done or omitted, it does not come within the statute allowing double costs, where the defendants succeed in the action. (Affirming decision S. G. at Special Term, 33 How. 3 , and concurring in Judge Ingraham’s views on this point.)

The statute giving double costs, when adopted, applied exclusively to actions and pro ceedings in courts of law, and not to suits in equity j consequently it is not applicable to actions of purely equitable cognizance.

New York General Term, October, 1867.

Before Leonard, P. J. Fullerton and J. C. Smith, Justices.

An injunction was granted restraining the defendants from interfering with or hindering the plaintiff in his business, and the defendants severed in their answer. The injunction was subsequently dissolved, and the action discontinued on payment of taxable costs. The clerk, on taxation, disallowed the costs of the police commissioners, but allowed double costs and double disbursements to the attorneys for the sanitary commissioners.

The plaintiff and the police commissioners appealed from the adjustment of the clerk to the special term. It was there decided by Ingraham J. (33 How. p. 3), that the clerk was right in refusing to tax more than one bill of costs ; that the defendants sued as the board of health, could not sever so as to be entitled to two bills of costs, and that the statute allowing double costs to a public officer for official acts, applies only to actions brought for an act done, or for an omission to

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do an act in the line of his duty, and not to a proceeding where no damages were sought or relief asked, either for acts done or omitted.

The defendants appealed from the order directing a retaxation, and denying double costs.

Abraham R." Lawrence, Jr., attorney for plaintiffs.

George Bliss, Jr., attorney for Sanitary Commissioners.

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

1st. 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 of which it was his duty to perform. The only pmpose 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 recover damages nor ask for relief, either by reason of acts done or omitted; he 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 the special term, and I fully concur in it.

2d. 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., concurring.