Tucker v. Gilman — 37 N.Y. St. Rep. 958

Majority

p. 958

Mary A. P. Tucker, Pl’ff, v. Cornelia Gilman, Def’t.

(Supreme Court, General Term, First Department,

Filed April 17, 1891.)

Headnote

Contempt—Refusal to pay costs as directed.

One T: was directed to pay the costs of this action as being beneficially interested therein, and such direction was affirmed on appeal. Having refused to pay he was adjudged in contempt and fined the amount of such costs. Feld, that proof of such refusal was sufficient to show damage to defendant, and the fact that the payment was directed to be made to her attorney did not alter the question.

Appeals by the defendant and one Preble Tucker from order adjudging the said Tucker in contempt for non-payment of certain costs.

George H. Fletcher, for def’t; Charles J. Hardy, for Preble Tucker.

On the 2nd day of July, 1890, an order was made and entered directing the payment by Preble Tucker of certain costs of this action upon the ground that he was beneficially interested therein. The said Tucker appealed to the general term and to the court of appeals from said orders. In both these tribunals the order was fully affirmed, with costs, and in January, 1891, certified copies of all the orders were served upon said Tucker and demand made for the payment of said costs. Tucker refused to pay the same and this application was made to punish him for a contempt and the court made an order adjudging him in contempt for failure to pay costs as directed in the order of July 2nd, and fined him the amount of such costs, and both parties appeal.

The first point made by the appellant Tucker is that the order was improperly made because there was nothing before the court to show that his refusal to pay the costs did defeat, impair, impede or prejudice any of the rights of the defendant in this action. The fact that the appellant Tucket has refused to pay a sum of money is apparent; that he has refused to pay it as directed to the attorney of the defendant, for her use, is also conceded, and it needs no further proof to show damage; it follows as a matter of course.

The fact that the orders directed the payment of the money to defendant’s attorney did-not alter the question. That form of order has been approved in this case by the court of last resort and it is now too late for Preble Tucker to quibble at the terms. He was bound to-comply with it and if he did not he was guilty of contempt

The amount of fine imposed fully indemnified the defendant and although the court might have imposed an additional sum, yet we will not interfere with the discretion in this respect of the court below.

The costs of the appeals were not included in the order to show cause and for this reason if for no other were properly refused consideration.

p. 959

This proceeding was a motion in an action. It was so considered by the moving party, as every paper is entitled in the action.

The order appealed from should be affirmed, without costs.

Daniels and Lawrence, JJ., concur.