People ex rel. Slaight v. Petten — 21 N.Y. St. Rep. 894

Majority

p. 894

The People ex rel. James W. Slaight, as Receiver of, etc., of Jefferson Patten and Ano., App’lts, v. Jefferson Petten, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

■Contempt—Reversal op order—Costs—Entitling op papers.

Where in proceedings for contempt, on appeal the papers are entitled as in a special proceeding, instead of "being entitled as a proceeding in the action in which the alleged contempt was committed, and the appellate court have nothing before them 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 him guilty of the contempt.

Appeal from an order of the special term of Kings county denying appellant’s motion for retaxation of costs.

Defendant was adjudged guilty of a contempt in the proceeding entitled The People ex rel. James W. Slaight v. Jefferson Patten. On appeal to the general term the order “was reversed, with costs and disbursements.” 6 N. Y. State Rep., 753. The clerk thereupon taxed costs in favor of defendant against the relator at $176.52. Relator moved .for a retaxation which motion was denied.

T. B. Yates, for app’lts; Daniel Cameron, for resp’t.

As pointed out in a previous opinion in this, proceeding (6 N. Y. State Rep., 753), 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 Slaight 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; Barnard, P. J,, not sitting.