Majority
p. 636In the Matter of RICHARD B. KELLY.
Headnote
Attorney—improper conduct of—UaMHiy of, for costs imposed on account qf — Precept for collection of—form, <f— when may direct the confinement of attorney.Where an attorney, from improper motives and without just cause, institutes proceedings to procure the removal from the bar of another attorney, he is . properly chargeable with the costs and disbursements incurred in such proceedings; and upon his failure to pay the same, a precept may lawfully issue, committing him to the county jail until such payment be made.
It is not necessary that the amount of the costs and disbursements should be specified in the order imposing the payment of the costs upon the attorney; it is sufficient that the same should be duly taxed upon notice to him. The order and the adjustment of the costs are to he read together, and are a sufficient specification of the sum ordered to be paid.
People v. PFevins ( 1 Hill, 154 ) followed.
Appeal from an order of the Special Term, denying a motion .to set aside a precept granted for the collection of costs, ordered by the General Term to be paid by Henry H. Morange, an. attorney of this court.
H. H. Morange, in person.
Wm. H. Arnoux, for the respondent.
The appellant, Henry H. Morange, an attorney and counselor of this court, made a motion at the last October term of this court, to strike Richard B. Kelly, another attorney and counselor, from the
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roll. The motion was founded upon affidavits and an order to show cause, and was met by opposing affidavits. Mr. Morange was heard fully in favor of his motion; but, it satisfactorily appearing to the court that the conduct of Mr. Kelly in the matter mentioned in the affidavits had been strictly honorable, and in entire good faith, the court declined to hear counsel on Mr. Kelly’s behalf, and denied the motion, with ten dollars costs of opposing same and disbursements; and, it appearing to the court that the proceedings had been prosecuted by Mr. Morange with improper motives, the court ordered that the costs and disbursements be paid by him personally. The costs and disbursements were afterward duly taxed by the court at $115.30, upon due notice and the appearance of Mr. Morange on such taxation. A copy of the taxed bill was served, and payment demanded and refused. Thereupon, application was made and granted, on the 17th day of November, 1874, at Special Term, that a precept issue to the sheriff', commanding him to take the body of said Morange and commit him to the county jail, and keep and detain him in custody until he should pay the said sum of $115.30, and ten dollars costs of the application. Precept was accordingly issued, and Morange was taken into custody thereon. He then moved at Special Term on affidavit to vacate and set aside the precept, which motion was denied with costs, and from the order denying the same this appeal is taken. The only questions made here are as to the regularity of the mode adopted to enforce payment of the costs, and the alleged informality of the order of the General Term, in not specifying the amount of costs and disbursements to be paid. We think the second of these points is disposed of by People v. Nevin,[1] which substantially holds, that the order and the adjustment of the costs are to be read together, and are a sufficient specification of the sum ordered to be paid. In this case the taxation was made by the court at the sum named in the precept, and Morange not only attended such taxation on notice,' but was served with a copy of the taxed bill. It is provided by the Revised Statutes, that, “when any rule or order of the court shall have been made for the payment of costs, or any other sum of money, and proof by affidavit shall be made of the personal demand of such money, and of a refusal to pay it, the
* 1 Hill, 154 .
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court may issue a precept to commit the person so disobeying to prison, until such sum and the costs and expenses of the proceeding be paid.” This provision was materially modified by chapter 390 of the Laws of 1847, which declares that, “No person shall be imprisoned for the non-payment of interlocutory costs, or for contempt of court in not paying costs, except attorneys, solicitors and counselors, and officers of court, when ordered to pay costs for misconduct as such.” The exception, we think, leaves the Revised Statutes in full force in the excepted cases. Mr. Morange, as,an attorney of the court, instituted proceedings against a brother lawyer for his removal from the bar, in a case where it appeared to the court that there were no grounds whatever for such proceeding, and, as recited by the order of the court, it still further appeared that the proceedings had been prosecuted with improper motives. It is not necessary, and perhaps not proper, to set out here the facts upon which the court so adjudged. That order is not under review, and, for the purposes of this motion, was óonclusive on the Special Term. To institute such a proceeding without grounds, and to prosecute the same with improper motives, is misconduct in an attorney, for which the court may visit him with the costs of the injured party. The court, for that reason specially assigned in the order, did impose on,Mr. Morange the costs and disbursements, to be paid by him personally. We think the mode pursued for the collection of such costs is allowed by statute, and that the party entitled to them is not limited to the precept in the nature of an execution against personal property, provided for by the act of 1847.
The order of the Special Term should be affirmed with ten dollars costs of this appeal, besides disbursements.
Daniels and Beady, JJ., concurred.
Order affirmed with ten dollars costs, besides disbursements.