« AnteriorContinuar »
Flour City National Bank of Rochester agt. Hall.
The one made by Mr. Gorton proves the cause of action, and then proceeds as follows: "And deponent further says, that he is informed by Horace D. Mallory, whose affidavit is hereto annexed; and is otherwise informed and verily believes, the said defendant Hall, is about to remove all his property from this state, with intent to defraud his creditors, and especially to defraud the plaintiff; and that he has disposed of his property, not money, and converted it into money and securities, with the like intent; and intends himself to depart from this state, and take with him the proceeds of his property so disposed of, with like intent."
The affidavit of Mr. Mallory, states as follows: "That on Friday last, the 25th instant, deponent bought a horse of the defendant, Philander E. Hall, for the sum of one hundred and seventy-five dollars, and paid him for the said horse seventy-five dollars in money, and gave him deponent's note for one hundred dollars, payable six months from that date. That said Hall then remarked to deponent, that was the last of his property that he had disposed of, and that if he, Hall, were not going away, deponent could not buy it for any such price; and then deponent inquired where and when he was going? and he answered, to St. Louis, Missouri, with the intention of remaining there if things looked to suit him; and that he intended to start for there next Monday morning. That deponent resides in the village of Canandaigua, and said Hall resides near that village, in Ontario county; and further deponent saith not."
It will be seen that Mr. Gorton's affidavit adds no strength to that of Mr. Mallory, on the question of Hall's intention in removing or disposing of his property, for the reason that all it states is upon information and belief, which is no evidence, except so far as facts are stated as the ground of belief. No such facts are stated, beyond what are contained in Mr. Mallory's affidavit.
The latter affidavit states nothing more than the purchase by the deponent of a horse of Hall, at a price which Hall alledged at the time would not have purchased it if he, Hall, were not going away; and that upon being inquired
Stewart agt. The Metropolitan Board of Health.
of when and where he was going, answered to St. Louis, Missouri, with the intention of remaining there if things looked to suit him; and that he intended to start for there the next Monday morning. There is nothing in all this indicating a fraudulent purpose, or an intention of absconding -nothing inconsistent with a fair and honest purpose to pay his debts. It does not appear that he owed any debt but the one due to the plaintiff, nor that he was not abundantly able to pay that. It was lawful for him to change his residence from the state of New York to the state of Missouri, and he made no secret of that intention; and the fact that he had been disposing of his property in view of such removal, certainly does not tend to establish an intention to defraud his creditors.
Where acts or statements of a party are susceptible of two interpretations, one indicating a fraudulent, and the other an honest and lawful purpose, the latter is to be adopted.
In the present case, we think that all that the affidavits legally prove, comes entirely short of establishing a guilty purpose on the part of the defendant.
We think the order of the special term vacating the order of arrest should be affirmed, with ten dollars costs. Ordered accordingly.
MATTHEW W. STEWART agt. JACKSON S. SCHULTZ and others, COMMISSIONERS OF THE METROPOLITAN SANITARY DISTRICT, THOMAS C. ACTON and others, COMMISSIONERS OF THE METROPOLITAN POLICE, constituting THE METROPOLITAN BOARD OF HLALTH.
The Metropolitan Board of Health of the city of New York, when sucd as such, cannot sever, and appear by attorney separately, although they are composed of the Commissioners of the Metropolitan Sanitary District, and the Commissoners of the Metropolitan Police.
Stewart agt. The Metropolitan Board of Health.
Consequently, where the Board of Health, as defendants, sever, and appear by separate attorneys, they are entitled to but one bill of costs, when they are successful.
The statute allowing double costs to public officers, sued for official acts, is not repealed. But the party entitled to double costs, must apply to the court for them. The clerk is not authorized to decide upon allowing or disallowing them on taxation. (See Wheelock agt. Hotchkiss, 18 How. 468, contra as to the authority of the clerk.)
An action against the Metropolitan Board of Health, for an injunction restraining them from interfering with the business of the plaintiff as a butcher, is not brought for an act done, or for an omission to do an act which it was their duty to perform, but simply seeks to prevent any act from being done, and does not come within the provisions of the statute allowing double costs to public officers.
New York Special Term, March, 1867.
In this case an injunction was granted restraining the defendants from interfering with, or hindering the plaintiff in his business as a butcher; and the defendants severed in their answer. The injunction having been dissolved, the action was ordered to be discontinued on payment of taxable costs.
The clerk on the taxation, disallowed the costs of the attorneys for the Police Commissioners, but allowed double costs, including double disbursements, to the attorney for the Sanitary Commissioners.
ABRAHAM R. LAWRENCE, JR., attorney for plaintiff.
BROWN, HALL & VANDERPOEL, attorneys for Police Commissioners.
GEORGE BLISS, JR., attorney for Sanitary Commissioners.
INGRAHAM, J. The clerk was right in refusing to tax more than one bill of costs. The defendants were sued as the Board of Health, and they could not sever. Separate appearances were irregular; as well might the two boards of the common council appear by separate attorneys, as the component parts of the Board of Health.
The statute allowing double costs to public officers sued for official acts is not repealed. (18 N. Y. R. p. 260.) But it was held the party must apply to the court for them. (Graham's Pr. p. 733; 4 Wend. 216.)
And the clerk is not
to decide whether double costs are to be allowed. A con
Cooper agt. The Metropolitan Board of Health.
trary rule is stated by MARVIN, J., in 18 Howard, 468. This is not, however, material, as I do not consider this to be one of the actions specified in the Revised Statutes. (3 R. S. 5th ed. p. 909.) That applies only to actions brought for an act done, or for an omission to do an act which was his duty. This was a proceeding to restrain the Board of Health from interfering with the plaintiff. It did not claim any damages or ask for any relief, either for acts done or omitted, but sought to prevent any from being done.
The disbursements taxed prospectively, must be deducted. if the costs are paid. Re-taxation ordered.
NEW YORK COMMON PLEAS.
CHARLES COOPER et al. agt. JACKSON S. SCHULTZ and others, COMMISSIONERS OF THE METROPOLITAN SANITARY DISTRICT, THOMAS C. ACTON and others, COMMISSIONERS OF THE METROPOLITAN POLICE, constituting THE METROPOLITAN BOARD OF HEALTH.
The component parts of The Metropolitan Board of Health of the city of New York, cannot be separated in defending an action, so as to authorize the allowance of more than one bill of costs.
An action against The Metropolitan Board of Health, to restrain them by injunction from interfering with the business of the plaintiffs, as butchers, is not brought for or concerning any act done by a public officer by virtue of his office; nor for or concerning the omission by a public officer or person, to do any act which it was his official duty to perform, consequently, does not come within the provision of the statute allowing double costs. (It will be seen that this agrees with the next preceding case of Stewart agt. The Metropolitan Board of Health, upon these questions. No allusion is made in this case to the power of the clerk to decide and tax double costs.)
The statute giving double costs has no application to suits in equity.
Special Term, March, 1867.
AN injuntion was granted restraining the defendants from interfering with, or hindering the plaintiffs in their business as butchers, and the defendants severed in their answer.
Cooper agt. The Metropolitan Board of Health.
The injunction was subsequently dissolved, and the action ordered to be discontinued on payment of taxable costs.
The clerk on the taxation allowed two bills of double costs, each including double disbursements; one to the attorney of the Sanitary Commissioners, and one to the attorneys of the Police Commissioners, and from this taxation the plaintiffs appealed.
ABRAHAM R. LAWRENCE, JR., attorney for plaintiffs.
CARDOZO, J. My conclusions in this matter are,
First. That the Metropolitan Board of Health-a body created by the act of February 26th, 1866-is the only defendant in this case, and that its component parts cannot be separated in defending a suit, so as to authorize the allowance of more than one bill of costs.
Second. That double costs cannot be recovered; because, 1st. This suit was not brought for, or concerning any act done by a public officer by virtue of his office; nor for or concerning the omission by a public officer or person, to do any act which it was his official duty to perform. The action was brought to restrain the defendant from doing that which the plaintiffs claimed it ought not to be allowed to do.
2d. The statute giving double costs, has no application to suits in equity.
The ruling of the clerk should be reversed.