Catlin v. Adirondack Co.

29 N.Y. Sup. Ct. 493

Opinion

Barrett, J.:

Upon tbe previous motion in this cause, tbe court set aside tbe execution against tbe person unconditionally. That was necessarily an adjudication, upon tbe papers then before tbe Special Term, that it was not a ease where tbe usual condition should be imposed upon tbe plaintiff. Although an action for false imprisonment was, immediately thereafter, commenced, tbe defendants do not seem to have made any special effort, by an application for a re-settlement, re-considei’ation, or otherwise, to obtain a more favorable exercise of discretion with regard thereto. They preferred to take tbe chances of success in sustaining the execution upon appeal. "With us they were successful, but upon further appeal to the court of last resort, tbe plaintiff’s views prevailed. After all this, tbe defendants now ásk for tbe imposition of a stipulation not to sue; and we cannot but think that it was properly refused by tbe court below. It would have been a harsh exercise of discretion thus to wrest from tbe plaintiff one of tbe substantial fruits of bis victory. After a severe struggle, tbe execution has been held to be illegal, and tbe order, absolutely and unconditionally setting it aside, has been fully affirmed. Meanwhile, tbe action for false imprisonment has been steadily progressing to trial. Costs have been incurred therein. Whether tbe plaintiff is entitled to any, and if so, what damages, is a matter to be determined by a jury. Tbe action was lawfully brought, and proceeded without restriction. The modification which tbe defendants seek would operate retroactively, wiping the action out ab initio, without costs, and leaving tbe plaintiff to pay bis own expenses. He would thus, in effect, be punished for acting, and relying upon the unconditional vacation. Of course, tbe defend.•ants did not expect such a modification upon the original papers, and by a court differently _ constituted. They claim to have presented new and additional facts. This claim, however, does not bear the test of examination. The principal fact now put forward is the repayment to the plaintiff of the money which he was forced to give the sheriff to secure his freedom. But the original order, in addition to vacating the execution, directed such repayment by the sheriff. As that officer had retained the money, he having been •enjoined from turning it over to the defendants, the court knew perfectly well that it would be immediately paid over under its order. That consideration, therefore, was then present. Compliance with the order must have been contemplated. Consequently, such compliance can scarcely be treated as a new and additional fact, bearing upon the question of now making the vacation conditional. The same may be said of the attorney’s good faith. That was never questioned. As to the character of the imprisonment, that is a consideration more properly to be addressed to the jury in the false imprisonment action. That part of the order appealed from, which refuses to modify the original order vacating the exe•cution, should be affirmed.

We are unable, however, to see upon what principle the other branch of the application was denied. The motion costs, whether •of the Special Term or of the Court of Appeals, should clearly have been set-off against the costs previously awarded in the same •action to the defendants against the plaintiff. The defendants were ■entitled to this as matter of right. It is common practice to order $uch a set-off on motion. But if equitable considerations wore necessary, they are furnished by the fact of the plaintiff’s insolvency.

The order should be modified accordingly, without costs of this appeal.

Davis, P. J., concurred. Present — Davis, P. J., and Barrett, J".

Order modified as directed in opinion, without costs.