Bates v. Dickerson

New York Supreme Court

Bates v. Dickerson

12 N.Y.S. 773, 35 N.Y. St. Rep. 928, 58 Hun 611, 1890 N.Y. Misc. LEXIS 2667

CourtNew York Supreme Court

DecidedDecember 29, 1890

StatusPublished

Cited by1 cases

This text of 12 N.Y.S. 773 (Bates v. Dickerson) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bates v. Dickerson, 12 N.Y.S. 773, 35 N.Y. St. Rep. 928, 58 Hun 611, 1890 N.Y. Misc. LEXIS 2667 (N.Y. Super. Ct. 1890).

Pincite

Opinions

Barrett, J.

The plaintiff states in his affidavit that the first action which he brought against these defendants was dismissed on the sole ground of the irregularity of his appointment as receiver. However that may be, the judgment of the court, to which alone we can look, ran against him as such receiver. Under section 3246 of the Code the costs were exclusively chargeable upon the estate. We have thus a judgment, in substance, against the estate for the costs of the action; and now the same estate, without paying these costs, is again proceeding, upon precisely the same facts, to secure the same judgment. The principle upon which a second action for the same cause is stayed until the costs of the first action are paid is here applicable. The defendants have a valid claim against the estate represented by the plaintiff for the amount of their judgment, and we have nothing to do with the reasons which actuated the court in awarding that judgment. The question is not affected by the subsequent appointment, nor would it have been affected by the appointment of a different person. The substance of the matter is the failure of the estate in the first action, and its attempt to proceed in a second action for the same cause without paying the costs of the failure. It was upon this that the discretion of the court below was invoked, and we think it was properly exercised. The order appealed from should be affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Barrett, J.

The plaintiff states in his affidavit that the first action which he brought against these defendants was dismissed on the sole ground of the irregularity of his appointment as receiver. However that may be, the judgment of the court, to which alone we can look, ran against him as such receiver. Under section 3246 of the Code the costs were exclusively chargeable upon the estate. We have thus a judgment, in substance, against the estate for the costs of the action; and now the same estate, without paying these costs, is again proceeding, upon precisely the same facts, to secure the same judgment. The principle upon which a second action for the same cause is stayed until the costs of the first action are paid is here applicable. The defendants have a valid claim against the estate represented by the plaintiff for the amount of their judgment, and we have nothing to do with the reasons which actuated the court in awarding that judgment. The question is not affected by the subsequent appointment, nor would it have been affected by the appointment of a different person. The substance of the matter is the failure of the estate in the first action, and its attempt to proceed in a second action for the same cause without paying the costs of the failure. It was upon this that the discretion of the court below was invoked, and we think it was properly exercised. The order appealed from should be affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

12 N.Y.S. 773, 35 N.Y. St. Rep. 928, 58 Hun 611, 1890 N.Y. Misc. LEXIS 2667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bates-v-dickerson-nysupct-1890.

Opinions

Related

Cite This Page — Counsel Stack