People ex rel. Slaght v. Patten — 3 N.Y.S. 304

Majority

p. 304

People ex rel. Slaght v. Patten.

(Supreme Court, General Term, Second Department.

December 13, 1888.)

Headnote

Contempt—Reversal of Order—Costs—Title of Proceeding.

Where the papers in proceedings for contempt are entitled as in an original special proceeding, instead of being entitled as a proceeding in the action in which the-.alleged contempt was committed, and there is nothing to show that they are wrongly entitled, a judgment against relator for costs, as in a special proceeding, is proper on a reversal, with costs, of an order adjudging the accused guilty of the contempt.

Appeal from special term, Kings county.

Defendant, Jefferson Patten, was adjudged guilty of a contempt in the proceeding entitled “The People ex rel. James W. Slaght against Jefferson Patten.” On appeal to the general term the order was “reversed, with costs and disbursements.” The clerk thereupon taxed costs in favor of defendant and, against relator at $176.52. Kelator then moved for retaxation. His motion, was denied, and he appeals.

Argued before Dykman and Pratt, JJ.

T. B. Gates, for appellant. Daniel Cameron, for respondent.

As pointed out in a previous opinion in this proceeding, (43-Hun, 638, mem.,) two methods are provided for the trial and punishment of contempt,—one by an order to show cause, prosecuted in the action; the other-is an original special proceeding against the accused in the name of the people. In the one case the proceedings are an incident of the original action-, and the decision of the court is an order; in the other the proceeding is an independent one and results in a judgment. The points of appellant recite that, this proceeding was originally a motion in the action of Slaght v. Patten,. and that the title has been changed by respondent’s attorney into one appropriate to a special proceeding. The papers before us on this appeal are entitled as in a special proceeding, and we have nothing to show that they are-not correctly so entitled. Being such a proceeding, the clerk was correct in entering a judgment for the costs.

As to the correctness of the various items allowed by the clerk, the papers-do not enable us to see that he fell into error. It follows that the order appealed from must be affirmed, but, as the practice is not yet very well settled», it should be without costs of appeal.

Dykman, J.» concurs.