People ex rel. Day v. Bergen

Headnote

Oosts — Special proceeding — Commitment of refwee for contempt for refusing to ca/rry out judgment of foredoswre — is not.

Appeal from an order of the Special Term, affirming a taxation of costs by the clerk of Kings county.

This proceeding was instituted to secure the commitment of the defendant for a contempt, in refusing to pay and discharge certain taxes and assessments upon real estate sold by him as a referee, as required by the judgment in the action of Easton v. Piclcersgill.

The court at General Term set aside the warrant of commitment. (13 S. O. R. N. Y. [6 Hun], 267.)

The relator objected to the taxation of the costs by the clerk, on the ground that this was a special proceeding, and that the costs should be taxed by the judge before whom the same was heard, or by the court by which it was decided.

The court at General Term say : “ It seems to me clear that the motion, out of which this controversy has arisen, was a part of the machinery belonging to the action of Easton v. Piclcersgill, used to carry the decree into effectual execution and protect the rights of the parties therein.

It was, therefore, not a special proceeding within the meaning of

section 3 of the Code, and the clerk was the proper officer to tax the costs under the decision of the General Term. (See Code, §§ 178, 471; Dresser r. Van Pelt, 6 Duer,. 687 ; Seeley v. Black,, 35 How., 369 ; Pitt v. Davison, 37 N. Y., 235 ; Holstem v. Bice, 15 Abb., 307 .)

It follows that the order appealed from must be affirmed, with costs and disbursements.”