Salisbury v. Strong — 92 N.Y. Sup. Ct. 615

Majority

p. 615

Celia Salisbury and Others, Administrators, Respondents, v. Edgar E. Strong and Others, Appellants.

Headnote

The portions of the order appealed from reversed, with ten dollars costs and disbursemnts. Opinion by Hardin, P. J. Appeal from an order made june 2,1894, as amended by an order of October 23,1894. The order appealed from is the one mentioned in the appeal book in Salisbury & Others v. Binghamton Publishing Company & Others. 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 like judgment creditors of the power company, and were restrained by the temporary inj unction, and the interlocutory decree makes that temporary injunction permanent.

p. 616

The interlocutory judgment makes provision for the plaintiffs’ claim ancl for the costs and disbursements, and for an additional allowance, should one thereafter be granted. It also contains provisions protecting and providing for thepayment 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.—

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 discontinuing the action, “together with $10.00 costs of the motion, and $60.00 costs of said reference.” Inasmuch as we have in considering 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 (see ante, p. 99), 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 ten dollars costs and disbursements.

Martin and Merwin, JJ., concurred.