Kane v. Rose

Joseph Wood, an attorney and counselor of this court, was retained by the plaintiffs to prosecute an action to set aside a certain conveyance of real estate. The action, after some delay, was brought on for trial at" a Special Term of the Supreme Court, resulting in a dismissal of the complaint. The plaintiffs desired to appeal from the judgment, but were dissatisfied with their attorney, and made a motion for an order substituting Martin T. Manton. An order was granted making the substitution without requiring bonds for the protection of the lien of Mr. Wood under the provisions of section 66 of the Code of Civil Procedure. There being a dispute as to the amount due the latter, the order directed the appointment of .a referee “to take proof as to the nature and terms of the retaining of Joseph Wood, Esq., as attorney for the plaintiffs herein, and the value of his services and necessary disbursements not already compensated for, and the amount so due to Mr. Wood, and to réport the same back to the court with an opinion thereon”; and it was further ordered “that the said Joseph Wood have a lien to the extent of the amount allowed by said referee upon plaintiffs’ cause of action, and all the pleadings, papers, and exhibits of the plaintiffs herein; and further order that no settlement of said cause of action be had or made except upon and after notice to said Joseph Wood.” The referee appointed by such order entered upon the discharge of his duties, and found that there was owing to Mr. Wood the sum' of $232.73, which report, with a modification, was confirmed by the court, and the order appealed from thereupon issued. This order provides that the plaintiffs “be and they hereby are directed to pay, as their joint and several obligation, to said Joseph Wood, Esquire, within twenty days from the date of the service of a copy of this order upon said Martin T. Manton, Esquire, attorney for said plaintiffs, the sum of two hundred seven and seventy-three one-hundredths dollars ($207.73), the amount found due said Joseph Wood, Esquire, from said plaintiffs, on said reference, together with the sum of eighty-seven and ninety-five hundredths dollars ($87.95) fees arid expenses of said reference.” The

In so far as the order appealed from is concerned, we are clearly of the opinion that the court had jurisdiction and power in the premises, and that the plaintiffs have no reason to complain. It may be proper to suggest, however, in view of the intimation in the opinion of the learned justice, that section 779 of the Code of Civil Procedure provides that, where a sum of money is directed by an order to be paid, if it is not paid within the time fixed by the order, or within 10 days after the service of the order, an execution against the personal property of the party required to pay the same may be issued by any party or person to whom the same is payable by the terms of the order (Halsted v. Halsted, 21 App. Div. 466 , 467, 47 N. Y. Supp. 649 ), so that it is doubtful if there be any authority under subdivision 3 of section 14 of the Code of Civil Procedure to punish the plaintiffs as for a contempt of court. This subdivision limits the power of the court to punish as for a contempt for the “nonpayment of a sum of money ordered or adjudged by the court to be paid” to a “case where by law execution cannot be awarded for the collection of sum, or for any other disobedience to a lawful mandate of the court.” The order appealed from is merely an adjudication that the sum mentioned in the order is due to Mr. Wood, with a direction that it be paid. If the plaintiffs fail to pay the same within the time limited in the order, Mr. Wood may issue an execution against the personal property of the plaintiffs, as was done in the case of Greenfield v. Mayor, supra, although the dictum would extend the power beyond this point. The limitations which we have to be sanctioned by

Order affirmed, with $10 costs and disbursements. Ail concur.