Tuell v. Paine

71 N.Y.S. 1121

Opinion

McADAM, J.

Where the court grants a favor, it may impose upon the party benefited such reasonable conditions as may be just; but, where the order merely accords a right to which the party is entitled, no conditions beyond possibly motion costs, or the like, can be imposed. 15 Enc. Pl & Prac. 336, 337; Tompkins v. Smith, 48 N. Y. Super. Ct. 113, affirmed 89 N. Y. 602; James v. Signell, 60 App. Div. 295, 69 N. Y. Supp. 1106. The defendant furnished a legal excuse for not appearing on the return of the order for his examination, and the court in consequence denied the motion to punish him for contempt upon submitting to the required examination and paying the disbursements incurred by reason of the default. To impose further conditions now would be to go beyond the proper exercise of judicial power. The order, as presented by the defendant, has therefore been signed.