Nichtauser v. Lehmann

15 Misc. 447, 37 N.Y.S. 208, 72 N.Y. St. Rep. 788

• Court: City of New York Municipal Court
• Decided: January 15, 1896
• Status: Published

Opinion

Fitzsimons, J.

An attachment was issued in favor of the plaintiff upon the ground that the defendant has assigned, disposed of or secreted, and is further about to assign, dispose of or secrete his property with intent to defraud his creditors.

. The defendant moved, upon the merits, to vacate said attachment, and the questions of fact were sent to a referee to hear and determine.

He reported in favor of the defendant vacating the attachment, and his report was duly confirmed, with $10 costs and $660 disbursements, the latter being the referee’s and stenographer’s fees, and from the order so made this appeal is taken.

The Special Term justice certainly had the right to refer the disputed questions of fact upon the motion in question to a referee for his determination. See Code Civ. Proc. § 3172..

As to the referee’s and stenographer’s fees, it was agreed between the attorneys for the plaintiffs and the defendant that, the successful party upon the reference would pay the same,, and having done so it was proper to enter in the order such fees and tax the same against the unsuccessful party,

The referee was right in vacating the attachment, as the . testimony certainly shows that the plaintiffs failed to sustain the charge made against the defendant, and upon which they received the attachment, and the order appealed from, therefore, is affirmed, with costs.

Conlan, J., concurs.

Order affirmed, with costs.