Davis v. Sturtevant — 11 N.Y. Super. Ct. 148

Majority

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Thomas E. Davis and Cortlandt Palmer v. Oscar H. Sturtevant and others.

Headnote

Reasonable counsel fees may properly be allowed to tbe aggrieved party, under sections 21 and 29 of the Revised Statute “ of Proceedings, as for contempts,” (2 R. S. p. 534.)

The words “ costs and expenses,” have the same meaning in each of these sections, and refer to the same proceedings. They mean the costs and expenses incurred by the aggrieved party in prosecuting the attachment.

Hence, if the costs and expenses included in a fine imposed by the court under section 21, are paid to the aggrieved party, his acceptance of the payment is a bar to his recovery of costs and expenses, in an action under section 29, upon a bond given for the appearance of the defendant upon the return of an attachment.

If such payment is accepted after a judgment for costs and expenses in an action upon the bond, the court will permit an execution to be issued only for the costs of the action.

Judgment for plaintiffs. Execution-limited to costs of action.

(Before Oakley, Ch. J., Duer and Campbell, J.J.)

December 12; December 23, 1854.

This was an action to recover $500, tbe penalty of a bond given by the defendant Sturtevant and the other defendants as his sureties, upon his arrest under an attachment issued against him by this court, for his contempt in disobeying an injunction, (vide 1 Duer, 451 .)

The prosecution of the bond had been ordered by the court, and the action was brought by the plaintiffs as assignees of the sheriff, under the provisions of the Revised Statutes. (2 R. S. p. 589, §§ 27, 28, 29.)

The bond was conditioned for the appearance of the defendant Sturtevant before the court on the 11th of February, 1853, the day on which the attachment was returnable.

The complaint set forth the attachment, the bond, the breach of its condition by the non-appearance of Sturtevant, and the order of the court for its prosecution, and averred that the costs and expenses of the plaintiffs in prosecuting the attachment amounted to the sum of $500 and upwards, for which sum, with interest, it demanded judgment.

The defence, in the answer, substantially was, that this court .

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bad no jurisdiction to issue tbe attachment, and that the same, and all the proceedings theron, including the bond given by the defendants, were, therefore, wholly void.

The cause was tried before OaMey, Ch. J., and a jury, on the 3d of June, 1853.

On the trial, the attachment, orders of the court, bond, &c., having been duly proved, a witness on the part of the plaintiffs swore that their costs and expenses in prosecuting the attachment, including .fees paid to counsel, exceeded the sum of $500.

The counsel for the defendants insisted that counsel fees ought not to be allowed as expenses, and that the evidence in relation thereto ought to be excluded.

The court overruled the motion, and the counsel excepted to the decision.

The counsel for the defendants then proved, that in the course of the proceedings upon the attachment against Sturtevant, the court had directed' a reference to Wm. Kent, Esq., to ascertain and-report what sum ought to be allowed to the plaintiffs for their costs and expenses, including reasonable counsel fees in prosecuting the attachment, and he produced and read in evidence the report made by the referee.

The report stated that the referee in making it had taken into consideration the pendency of twenty-six other cases in which motions for attachments had been made, and proceedings had thereon similar to the motions and proceedings now before him, The questions of law, and the arguments thereon, being in all the cases essentially the same; and that he had proceeded on the principle of ascertaining the aggregate amount of costs, expenses,.. and counsel fees in all the cases, and of assigning to each case am equal and proportionable share of this aggregate amount..

The report then, after setting forth in detail the different items of costs, expenses, and counsel fees, stated, that computed together they formed the sum of $2,340.98, and’that the share thereof chargeable to the defendant Sturtevant was $102.20.

The counsel for the defendants then moved that the complaint should be dismissed, upon the following among other grounds: namely, that the costs and expenses of the plaintiffs in the prosecution of the attachment had been fixed and settled by the reference, and by the final order of the court imposing a punishment

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upon tbe defendant Sturtevant for tbe contempt of wbicb be bad been adjudged to be guilty. {People v. Compton; 1 Duer, 571 -72, note a.)

Tbe other grounds of tbe motion it is not deemed necessary to state, since they were all in effect overruled by tbe decision of tbe court in tbe case of People v. the Mayor, 1 Duer. 453 .

Tbe motion was denied, and tbe counsel for tbe defendants excepted.

Tbe Chief Justice charged tbe jury in substance, that tbe plaintiffs, as tbe aggrieved party, were entitled under the provisions of the Revised Statutes to recover their costs and expenses in prosecuting tbe attachment, and that in bis opinion reasonable •counsel fees to two counsel might justly be allowed to them as a part of those expenses. That the evidence proved that large counsel fees bad in fact been paid, and that in fixing tbe sum to be allowed, tbe jury were not bound by tbe estimate made by tbe referee, but might form their judgment upon tbe whole evidence that bad been given. Tbe "jury rendered a verdict for tbe plaintiffs for $500. Tbe verdict was taken subject to tbe opinion of tbe court at General Term, with power to tbe court to modify tbe same, or direct a nonsuit to be- entered. Judgment in tbe mean time to be suspended.

H. Hilton, for tbe plaintiffs,

now moved for judgment upon tbe verdict.

D. D. Field,, for tbe defendants,

insisted that the complaint ought to have been dismissed upon tbe trial, and that the Judge erred in instructing tbe jury that counsel fees were chargeable as expenses, and that the amount reported by tbe referee was not tbe proper measure of damages.

It was stated upon tbe argument by tbe counsel for tbe defendants, and admitted by tbe counsel for tbe plaintiffs, that since the judgment of this court in tbe People v. Compton and others, including tbe defendant Sturtevant, bad been affirmed by the Court of Appeals, tbe whole fine of $352.20 imposed upon him by this court bad been paid by him, and that $102.20 of that amount bad been paid to and received by tbe plaintiffs for their costs and expenses in prosecuting tbe attachment, and upon these

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facts tbe counsel for tbe defendants insisted tbat tbe payment so made ought to be regarded as a satisfaction of tbe verdict tbat bad been given, and be therefore moved tbe court, tbat should judgment be rendered for tbe plaintiffs, it should be accompanied by an order restraining them from issuing an execution thereon for any sum beyond tbe amount of tbe costs tbat might be taxed for them in this action.

Tbe counsel for tbe plaintiff opposed tbe motion, but, as tbe facts were not disputed, be consented tbat it should be considered and determined by tbe judges in tbe same manner, as if regularly brought before them upon affidavits and notice.

By the Court.

We are all of opinion tbat tbe exceptions taken on the trial cannot be sustained. We think tbat tbe jury were rightly instructed, and, upon tbe evidence before them, were fully justified in rendering a verdict for tbe plaintiffs for tbe sum demanded'by tbe complaint.

Tbe right of tbe plaintiff to be allowed counsel fees as a part of these expenses, was in effect determined by this court in delivering its judgment in tbe People v. Compton and others, and as this judgment has been affirmed by tbe Court of Appeals, we think it must now be considered as settled, tbat reasonable counsel fees form a part of tbe expenses to which, in proceedings for a contempt under tbe statute, an aggrieved party, at whose instance an attachment is issued, and by whom it is prosecuted to judgment, is justly entitled.

Tbe report of tbe referee, and tbe final order of tbe court thereon, were not offered or received in evidence as creating a bar to a recovery, and it is certain tbat under'tbe pleadings they could not have been admitted for tbat purpose. No such defence was, or could have been, set up in tbe answer, for not only was this action commenced, but tbe answer was put in before tbe referee made bis report, and even before a reference was directed. Hence, if these facts constituted a defence at all, which we are far from saying, they were a defence which tbe defendants bad no right to set up, except by a supplementary answer in tbe nature of a plea puis darrein continuance, nor I apprehend except upon tbe condition of paying all tbe costs tbat bad previously accrued.

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Tbe report of the referee was therefore offered in evidence, not to defeat the recovery of damages, but as furnishing a rule by which the jury in estimating the damages ought to be governed. The Judge held that the. jury were not bound to follow the estimate of the referee, but were at liberty to form their own judgment upon the whole evidence before them, and in this opinion, which he retains, his brethren entirely concur. The jury might well have inferred from the testimony that had" been given, that more than $500 had been expended in counsel fees by the plaintiffs in the. proceedings against the defendant Sturtevant alone, without reference to. .the attachments against other persons, which it appeared from the report of the referee had been issued, and upon this view of the evidence the jury were folly justified in rendering their verdict for the whole sum demanded by the complaint.

■ The motion on the part of the plaintiffs for judgment on the verdict, is therefore granted.

We pass now to the motion that was. made upon the hearing for- relieving the defendant Sturtevant, and the other defendants, his sureties,.from- the effect of the judgment we have rendered, except as to the costs of the action. All objections to the regularity of this motion were very properly waived by the counsel for the plaintiffs, and it by no means follows from any observations that' have been made, that it may not be, and ought not to be, granted.

I shall proceed to state our views in relation to it, and the conclusions at which we have arrived.

The 21st section of the statute, regulating “ Proceeding as for contempts,-” &c;, (2 E. S. p. 538,) provides that, “ if an actual loss or injury shall -have been produced to any party by the misconduct alleged,” (that is, the misconduct charged as a contempt,) “a fine shall' be imposed sufficient to indemnify such party, and to satisfy his costs -and' expenses, which shall be paid over to him on the order of the court.” And the 29th section of the statute, in referring, to the action, by an aggrieved party, upon a bond given by adefendant, upon his arrest under an attachment, says, “that the measure of the damages to be assessed'in such action, shall be the extent of the loss or injury sustained by such aggrieved party by reason of the misconduct for' which the attachment was issued,

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and his costs and expenses in prosecuting such attachment. (2 R. S. 539.) Upon comparing these sections, we think it cannot be doubted that the words, “ costs and expenses,” are to be understood in each, exactly, in the same sense, and refer, exactly, to the same proceedings; in other words, that the “ costs and expenses” which are to be included in a fine imposed by the court, are the same which are recoverable by an aggrieved party in an action upon the bond, being in each case the “ costs and expenses” incurred by the party in prosecuting the attachment, — -just as the “ loss or injury” to which each section refers is the same loss and injury and sustained by the same party. The last clause in section 21, which has not yet been quoted, but which immediately follows that which has been quoted, and must be read in connection with it, is in these words, “ and in such case, the payment and acceptance of such fine, shall be an absolute bar to any action by such aggrieved party to recover damages for such injury or loss.” Now, although this clause is silent as to “ costs and expenses,” we are fully convinced that the principle which it declares is just as applicable to them as to the sum to be paid to the aggrieved party, as a compensation for the loss or injury sustained by him. It is just as applicable, because the entire clause is in truth no more than a special application of one of the plainest rules of natural justice as well as positive law, namely, that no person can be entitled to receive a double satisfaction for the same demand.

Applying the construction that we have given to the statutory provisions in the case before us, it seems a necessary consequence that the motion that has been made on behalf of the defendants, ought to be granted. The defendant Sturtevant has paid the whole fine imposed upon him, and the plaintiffs have accepted payment of all that portion of the fine which was awarded to them by the court as and for their “ costs and expenses” in prosecuting the attachment, and which, in the judgment of the court, were all that Sturtevant could justly be required to pay. So far as he was concerned, the sum so awarded was meant to be a full satisfaction to the plaintiffs. Had these facts occurred before the present action was commenced, we do not doubt that they would have constituted a full defence, and, according to the law that formerly prevailed, a payment that, if made before judgment, would be a good defence, if made after judgment would be a ground for re

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lief upon an “ audita, querela," and, consequently, as the law now stands, a ground for relief upon motion, the defence and the relief resting exactly upon the same principle, namely, that the payment was a satisfaction of the demand.for which the action was brought. It is to be observed that by the words of the statute, it is not the imposition, but the acceptance of a fine, that creates a bar to a recovery by action. Hence the plaintiffs, even after the judgment or final order of this court was affirmed by the Court of Appeals, had their election to accept the payment of their costs and expenses as included in the fine, or to seek their recovery by a continuance of this action. They made their election by accepting payment of that part of the fine which the court had directed to be paid to them, and by this election we must hold that they are bound; we must hold that all the costs and expenses to which they are entitled, and for the recovery of which this action was brought, have been paid to them.

Our decision, therefore, is, that the execution to be issued upon the judgment, to be entered, must be limited to the costs that the judgment shall include, and that when these costs, whether without, or under an execution, shall have been paid, the judgment must be satisfied of record.