O'Mahoney v. Belmont

48 How. Pr. 29

Opinion

Van Vorst, J.

— Two demands have been made upon the late receiver for the payment of the moneys ordered to be paid by the order of this court, made on the 6th day of March, 1873. The demands were made on him personally.

The first demand was made on the 14th day of March, 1873, and the latter on the 16th day of April, 1874, after the order had been affirmed by the general term, on appeal. A copy of the order was served on him, showing the separate amounts ordered to be paid.

Both demands were refused. On the 14th March, 1873, the amount demanded was the sum of §25,882.30, being the-amounts ordered to be paid, with interest to the date of that demand, stated’ in one sum. On the 16th April, 1874, the sum demanded was §27,808.76, being the amount of the sums directed to be paid, with the interest added to that date:

Upon the return of the order to show cause why the order directing the issuing of a precept, and the precept itself, should not be set aside, it was objected on the part of the late receiver, that the demand was made for a sum greater than that ordered to be collected by the precept. It is not shown that more was demanded of the late receiver than- was ordered to be paid by him by the order of the 6th March, 1873, and the amount stated in the papers upon which the order for the issuing of the precept was made, and which appears was demanded, must be deemed to be the correct amount so ordered to be paid, with interest added.

That the order directed the issuing of a precept for a less amount than was demanded, is no reason why it should be set aside if, in fact, no more was demanded than the late receiver was called upon to pay by the direction of the court. ■

The amount for which the precept was ordered was the sum of $24,627.31, with interest from the 7th day of October, 1872; which was one of the sums directed to be paid by tiie order of 6th March, 1873, and was included in the demand, the interest being added. The sum of $520, the referee’s fees, directed to be paid by the late receiver by the same order, and which, with interest, had been included, and that properly, in both demands, as the, defendant was entitled to demand its payment, was, however, omitted from the order directing the precept, and from the precept itself. This cannot affect the validity of the order or the precept, as both amounts were money ordered to be paid by the court.

It is unnecessary to decide whether a precept could have issued to enforce the payment of the sum of $520, as such sum is not included in the order directing its issuance. But that its payment was properly demandable, and that too at the time the other amount was demanded, can scarcely be questioned.

But I am inclined to think that there is no difference in the character of the sums which make up the amount demanded, so far as the enforcement of their payment is concerned, and that the separate sum of $520 ordered to be paid is not strictly within the terms “ costs,” mentioned in the act of November 22, 1847 (Laws of 1847, chap. 390, §§ 2 and 3 ; Newton agt. Sweet, 4 How. Pr. R., 134, opinion of Harris, J.; Livingston agt. Fitzgerald, 2 Barb., 396). In no sense is the amount “ interlocutory costs.” The amount is ordered to be paid in a special "proceeding, after judgment; although entitled in the action, to settle and enforce the payment of the moneys in the hands of the late receiver, such moneys having been received by him as an officer of the court, and under its order.

This sum, it appears, had been paid by the defendant Luche, or Ms attorneys, for the fees of the referee, on the accounting of the receiver, of the moneys in his hands. The court, in its order, directed that the late receiver should forthwith pay this sum, together with the principal sum above mentioned, to the defendant or his attorneys, for moneys so paid by them, on Mr. Barr’s accounting.

No costs, as such, were awarded by the order of the 6 th March, 1873.

The motion should be denied.

Note—The receiver after the precept was issued and served, was brought up before one of the justices of the supreme court upon writ of habeas corpus to inquire into the cause of his detention, but after a hearing the writ of habeas corpus was discharged, and the party remanded.

As to proceedings for contempt in not paying money ordered to be paid, see “ Crary New York Practice,” “ Special Proceedings,” vol. 1, 171.