Jones v. Sherman

City of New York Municipal Court

Jones v. Sherman

18 Abb. N. Cas. 461, 8 N.Y. St. Rep. 344

DecidedFebruary 15, 1887

StatusPublished

This text of 18 Abb. N. Cas. 461 (Jones v. Sherman) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Sherman, 18 Abb. N. Cas. 461, 8 N.Y. St. Rep. 344 (N.Y. Super. Ct. 1887).

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Opinion

McAdam, Ch. J.

Proceedings supplementary to execution are no longer regarded as proceedings in an action, but distinct “special proceeding's’’(Throop's Code, § 2433 and notes), yet the mode of reviewing orders made therein, and the practice relating thereto, are the same as if the order [462]*462had been made in aw ordinary action (§ 2433, subd. 2). The amount of costs recoverable in such proceedings is regulated by sections 2455 and 2456. The motion to punish for contempt went to the general term. It was, therefore, nothing more than a continuation of the motion on appeal in the same court. There, it was in the category of motions, and no more than $10 could be allowed as costs, besides disbursements (Phipps v. Carman, 26 Hun, 518). The rule is that appeals from orders are merely regarded as motions for the purpose of costs (Parsons on Costs, 99). As the costs in these proceedings are specially prescribed, section 3240, which relates only to costs in special proceedings “ not otherwise regulated,” has no application to the present contention. The court below was right in limiting the costs on appeal to $10 costs and disbursements (People v. Cooper, 10 Weekly Dig. 77), and the order must be affirmed, with costs.

Hyatt, J., concurred.

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McAdam, Ch. J.

Proceedings supplementary to execution are no longer regarded as proceedings in an action, but distinct “special proceeding's’’(Throop's Code, § 2433 and notes), yet the mode of reviewing orders made therein, and the practice relating thereto, are the same as if the order [462]*462had been made in aw ordinary action (§ 2433, subd. 2). The amount of costs recoverable in such proceedings is regulated by sections 2455 and 2456. The motion to punish for contempt went to the general term. It was, therefore, nothing more than a continuation of the motion on appeal in the same court. There, it was in the category of motions, and no more than $10 could be allowed as costs, besides disbursements (Phipps v. Carman, 26 Hun, 518). The rule is that appeals from orders are merely regarded as motions for the purpose of costs (Parsons on Costs, 99). As the costs in these proceedings are specially prescribed, section 3240, which relates only to costs in special proceedings “ not otherwise regulated,” has no application to the present contention. The court below was right in limiting the costs on appeal to $10 costs and disbursements (People v. Cooper, 10 Weekly Dig. 77), and the order must be affirmed, with costs.

Hyatt, J., concurred.

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Bluebook (online)

18 Abb. N. Cas. 461, 8 N.Y. St. Rep. 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-sherman-nynyccityct-1887.