In re Kelly — 59 N.Y. 595

Majority

p. 595

In the Matter of Richard B. Kelly, Respondent.

(Argued January 19, 1875;

decided January 26, 1875.)

Headnote

Where an application is made to the Supreme Court by one attorney to disbar another, the court, by virtue of its authority over the conduct of its attorneys, has power, independent of the Code, upon determining that the proceedings were instituted in bad faith to order the disbursements and costs of motion to be paid by the applicant, and its decision is not reviewabie here.

Appeal from order of the General Term of the Supreme Court in the first judicial department, denying an application on the part of Henry W. Morange, an attorney and counselor of the court, to disbar Richard B. Kelly, also an attorney and counselor, so far as it directed the disbursements and costs of motion to be paid by the applicant.

The material portion of the order is as follows:

“ It is ordered that this application be, and the same is, hereby denied, with ten dollars costs of motion and disbursements ; and it appearing that the proceedings have been prosecuted with improper motives, the court further orders that the said costs and disbursements be paid by said Henry H. Morange, personally.”

Matthew Hale for the appellant.

The provisions of section 303 of the Code are applicable to special'proceedings. (Laws 1854, chap. 270, § 3; Struthers v. Christal, 3 Daly, 327 ; Suprs. v. Briggs, 3 Den., 173 ; Downing v. Marshall, 37 N. Y., 380 .) This was a special proceeding and the provisions of the Code, under the act of 1854, are the only authority for the awarding of costs therein. (In re Cooper, 22 N. Y.,

p. 596

87 ; Laws 1854, chap. 270, § 3 ; In re Pierce, 12 How., 532 ; Code, § 315.) The allowance of disbursements are authorized only in case of judgments. (Paton v. Barker, 5 N. Y. Leg. Obs., 100 ; Hanel v. Boare, 9 Bosw., 682 ; Belding v. Conklin, 4 How., 196 ; Keating v. Anthony, 1 Code R. [N. S.], 233; Moore v. Cockroft, 9 How. Pr., 479 .) The order cannot be defended on the ground that it is a fine upon the appellant for a contempt. (2 R. S., 278, § 12 ; id., 534 , § 1 ; Ward v. Arenson, 10 Bosw., 589 .)

Wm. F. MacRae for the respondent.

The court had the power to impose necessary -disbursements. (2 R. S., §§20, 634; DeWitt v. Swift, 3 How. Pr., 282 ; Finch v. Calvert, 13 id., 13; Brockway v. Jewett, 16 Barb., 592 ; 2 R. S. [Edm. ed.], 656.) The court had the right to impose these costs and disbursements as a penalty or fine. (Jacobs v. Hooker, 1 Barb., 71 ; 2 R. S. [Edm. ed.], 289, § 12; 2 R. S., 534, §§ 1, 21.)

This was an application to disbar the respondent, made by Henry II. Morange, who was also the attorney and counselor of the court. The only point presented is, that the court below had no power to order the disbursements in addition to ten dollars costs, upon denying the application, to be paid by the applicant; and the Code, section 315, is claimed to be applicable and controlling. We think the court had power to make the order appealed from, by virtue of its authority over the conduct of its attorneys and officers, independent of the provisions of the Code. The proceeding is of a public nature and quasi criminal, and when instituted by an attorney in bad faith, as was found by the General Term, it was competent for that court to provide indemnity to the aggrieved party by imposing the burden upon the accuser.

The manner of exercising the power is not reviewable.

All concur.

Appeal dismissed.