Title Guarantee & Trust Co. v. Brown — 125 N.Y.S. 780

Majority

p. 780

TITLE GUARANTEE & TRUST CO. v. BROWN et al.

(Supreme Court, Appellate División, Second Department.

November 18, 1910.)

Headnote

Injunction (§ 27^[2] )—Payment of Costs.

Where plaintiff, suing to set off costs awarded in favor of the adverse-party, in which third persons claimed an interest, against a judgment for costs recovered by plaintiff against the adverse party, alleged that the adverse party was insolvent, and that, if he and the third persons were permitted to collect the costs awarded against the plaintiff, the latter would be deprived of the 'benefit of his judgment, while compelled to pay costs to the adverse party, the Special Term had power to enjoin the adverse

p. 781

party and third persons from collecting the costs awarded against plaintiff pending the action.

[Ed. Note.—For other cases, see Injunction, Dec. Dig. § 27.^[2] ]

Appeal from Special Term, Kings County.

Action by the Title Guarantee & Trust Company against Max Brown and others. Prom an order granting a motion for an injunction pendente lite, defendants appeal. Affirmed.

See, also, 138 App. Div. 894 , 122 N. Y. Supp. 1147 .

Argued before WOODWARD, BURR, THOMAS, RICH, and CARR, JJ.

Max Brown, for appellants.

Sidney A. Clarkson, for respondent.

The complaint in this action alleges the recovery of a judgment in the Municipal Court against the defendant Max Brown for $92.50, with $16.40 costs and disbursements, making a total of $108.90; that subsequently a second judgment was docketed against the defendant Max Brown, and in favor of the plaintiff, for the sum of $58.60; that executions on the same have been returned wholly unsatisfied; that the defendant Max Brown is insolvent and unable to pay such judgments; and that the defendants Rebecca Brown and Isaac Dolinky claim some interest in a certain award of costs made by the Appellate Division of the Supreme Court in favor of the defendant Max Brown in a litigation between plaintiff and the said defendant Max Brown. The purpose of the action is to set off the amount of these costs, awarded by an order of the Appellate Division, against these judgments, and the order appealed from stays the defendants from collecting these costs during the pendency of the action.

The facts alleged show that defendant Max Brown is insolvent and unable to pay the judgments, and, if the defendants are permitted to collect the costs which have been awarded against the plaintiff, the latter will be deprived of all the benefit; of its judgment, while compelled to pay costs to the defendant Max Brown. We think the learned court at Special Term had the power to grant the stay in this action, and that the order appealed from should be affirmed. If the defendants succeed in th'e action, no substantial right will be interfered with; if they do not, the plaintiff is entitled to some measure of protection.

The order appealed from should be affirmed, with $10 costs and disbursements.

THOMAS and RICH, JJ., concur. BURR, J., concurs in result. CARR, J., not voting.