Salisbury v. Strong — 66 N.Y. St. Rep. 39

Majority

p. 39

Celia Salisbury et al., Resp’ts, v. Edgar E. Strong et al., App’lts.

(Supreme Court, General Term, Fourth Department,

Filed February, 1895.)

Headnote

Appeal from an order granting a discontinuance.

The appellants Strong, Carlisle, and Turney were judgment creditors of the Binghamton Hydraulic Power Company, and recovered judgments, and also Seymour and Whitlock, composing the firm of Seymour & Whitlock, were the judgment creditors of the power company, and were restrained by the témporary injunction, and the interlocutory decree makes that temporary injunction permanent. The interlocutory judgment makes provision for the plaintiff’s claim, and for the costs and disbursements, and for an additional allowance, should one thereafter be granted. It also contains provisions protecting and providing for the payment of the other creditors, including these appellants. The interlocutory judgment that was entered upon the report of the referee, to hear and determine, appointed Hon. W. B. Edwards referee, to take proof of claims of creditors who had not already proved their claims. The referee died November 23, 1893.

E. K. Clerk, for app’lts; Gill & Stillwell, for resp’ts.

Plaintiffs have appealed from that portion of the order which allows a discontinuance of the action. They also appeal from that portion which provides that, in case the money is not tendered to the plaintiffs’ attorneys, an order may be entered

p. 40

discontinuing the action, “together with $10 costs of the motion, and $60 costs of said reference.” Inasmuch as we have considered the questions raised in respect to the same order in the case heard at this same term between Salisbury et al. and the Binghamton Publishing Company, and have, according to the views expressed in our opinion, reached the conclusion that the order should be reversed in that case, we think the same views should be applied to the appeal in this case, and that the portions of the order appealed from should be reversed.

The portions of the order appealed from reversed, with $10 costs and disbursements.

All concur.