Anonymous v. Anonymous

10 How. Pr. 353

• Court: New York Supreme Court
• Decided: January 15, 1855
• Docket: No. 1; No. 2
• Status: Published

Opinion

Mitchell, Justice.

S-A-had a life estate in certain lands in this city, which, on bis decease, were to pass to his father’s grand-children, pursuant to his father’s will. He died on Sunday, June 13,1847. There were sixty-eight grandchildren surviving him. These two complainants, and their respective solicitors, were in such hot haste for a partition of the property, and of such advantages as might accrue to the party who might be the first to commence an action; that the one filed his bill for partition at 9 o’clock the next morning, and soon after served a subpoena to appear and answer on one of the defendants; the other complainant filed his bill at 11 o’clock on the same morning, and soon after served a subpoena. The property was sold for something over $8,000; and of this sum something like $6,800 were consumed in costs. It is not surprising, therefore, that when the guardian of one of the infant defendants brought this matter before the court at general term, the court ordered a retaxation of the. costs; and that any excess should be refunded by the respective solicitors. An appeal was taken from that order, and dismissed by the court of . appeals. The solicitors then' appeared before the taxing officer, and after a long investigation, and great delays, not attributable to that officer, he has completed his report, showing how much should be refunded by the solicitor for one of the, complainants; the solicitor for the other complainant having prudently arranged the matter so far as he was concerned. The solicitor for the guardian now moves, on the report of the taxing officer, and a. mass of previous orders and affidavits, for an .order,- that the solicitor who, according to the report, has been overpaid, should refund the excess.

It might be expected that the opposition to the motion would be founded on some, supposed error of the taxing officer. No such thing is intimated; ¡.but it is insisted that the original order of the court is irregular for, various reasons;—the principal one is, that the general term can only make,an order on an appeal. That point has been repeatedly before this court, and it has always been held that there is but one supreme court; and that it is the supreme court which acts and decides, whether it acts through the special term or the general term.. .None of the ancient ¡powers of.¡the general term are. taken from it; and it can therefore make an original oi;der in any matter in which it might formerly have made such order.

The Code specifies the manner in which appeals shall be brought before the general term, but does not attempt to limit its powers. That branch óf the court very properly refuses to act in most cases- in which the special term can act; but that is not.from any doubt of- its power to act, but as a. matter of expediency, and for the sake of the dispatch of business.

The other objections, if originally valid, are of such a nature that they must -be deemed waived by proceeding under the order, and by the omission of any motion for some years, to set aside that order.

The motion must be granted, with costs.