Fiske v. Twigg

18 Jones & S. 69

• Court: The Superior Court of New York City
• Decided: February 4, 1884
• Status: Published

Opinion

By the. Court.—Sedgwick, Ch. J.

The appellant’s counsel objects that the depositions were not papers in the special proceeding, because, as I understand, they were not in fact used by the motion for the appointment of a receiver. They were, however, in the proceeding, and while it was pending, before the motion was made.

Another objection is, that the appellant has a private right of property in them. It would be difficult to establish this when it is considered that the deposition is taken by the officer before whom the examination is had. It is sufficient to say that whatever the nature of appellant’s interest, it arose and remained subject to the provision of law, that the paper must be filed.

Another objection is, that before the order appealed from was made, another application of like purpose had been made and denied by order. It does not satisfactorily appear, that such an objection was made to the judge who granted the order appealed from. If it did, the order denying the application should not be used as determining, on the principles of res adjudicata, that the appellant could never thereafter be called upon to file the papers in obedience to the .statute. In substance, the order shows that the court refrained from commanding the appellant to file at that time, as it does not appear that the order was based upon a decision that the appellant was not bound to file at any time or under any circumstances.

Order affirmed, with $10 costs, and disbursements to be taxed.

O’Gorman, J., concurred.