Jones v. Sherman — 8 N.Y. St. Rep. 344

Majority

p. 344

Charles Jones, Resp’t, v. Roger A. Sherman, App’lt.

(City Court of New York, General Term,

Filed February, 1887.)

Headnote

Supplementary proceedings—Contempt—What costs allowed—Code Civ. Pro., §§ 2455, 2456.

The costs on reversal of an order directing a commitment for contempt in supplementary proceedings are but ten dollars costs and disbursements.

The defendant was adjudged guilty of contempt in supplementary proceedings had herein; he appealed to the general term, and the order for committal was reversed with costs. The defendant claimed, and the clerk taxed, sixty dollars costs, besides disbursements, in defendant’s favor under section 3240 of the Code. The plaintiff moved for re-taxation and the special term reduced’ the amount to ten dollars costs and disbursements. From this order the defendant appeals.

L. F. Post, for app’lt; N. Quackenbos, for resp’t.

Proceedings supplementary to execution are no longer regarded as proceedings in an action, but distinct “ special proceedings ” (Throop’s Code, section 2433, and notes); yet the mode of reviewing orders made therein, and the practice relating thereto, are the same as if the order had been made in an ordinary action (section 2433, subd. 2). The amount of costs recoverable in such proceedings is regulated by sections 2455, 2456. The motion to punish for contempt went to the general term. It was, therefore, nothing more than a continuation of the motion on appeal in the same court. There it was in the category of motions, and no more than ten dollars could be allowed as costs besides disbursements. Phipps v. Carman, 26 Hun, 518 .

The rule is that appeals from orders are merely regarded as motions for the purpose of costs (Parsons on Costs, 99). As the costs in these proceedings are specially prescribed, section 3240, which relates only to costs in special proceedings “not otherwise regulated,” has no application to the present contention.

The court below was right in limiting the costs on appeal to ten dollars costs and disbursements (People v, Cooper, 10 Week. Dig., 77), and the order must be affirmed, with costs.

Hyatt, J., concurs.