29 How. Pr. 411 | N.Y. Sup. Ct. | 1864
The plaintiffs were clearly entitled to the surplus moneys which remained in the hands of Hiram Sehoonmaker, upon the foreclosure sale, after the payment of his mortgage. This money certainly did not belong to Sehoonmaker. The plaintiffs demanded it of Sehoonmaker after the sale, and he refused to pay it to them, assigning no reason whatever for his refusal. Under such circumstances, an action could be maintained by the plaintiffs against Sehoonmaker, for the money thus unlawfully retained. And unless some good cause is assigned for the refusal to pay the plaintiffs when the money was demanded, there is no substantial reason why the defendant, Sehoonmaker, is entitled to costs out-of the fund, or why the plaintiffs should not recover costs of the suit which his refusal to pay over the money compelled the plaintiffs to institute.
It is urged that the action was an equitable one, and comes within that class of cases where costs are allowed
Conceding to Schoonmaker all that is claimed by his counsel, and the correctness of his position in a-case where he had been free from fault, yet I think it must be admitted that he made a mistake in giving no reason for retaining the money when demanded of him by the plaintiffs, and that under such circumstances he retained it at his peril. Even if this were a case where the court was authorized to exercise a discretion as to the costs under the Code 306), I am not prepared to say that such discretion has not been fairly exercised by the judge who tried the cause. There was no absolute refusal; no appearance by any party to contest the plaintiffs' claim; and a judgment in favor of the plaintiffs, which was first in priority.
Was he entitled to costs which had been caused by his own act and conduct ? Was he entitled to the use of' the money when he could have paid it into court ? Costs in cases of this character are not always chargeable upon the fund, and the parties who fail should usually bear the consequences of a defeat (Lawton agt. Sager, 11 Bard. 349); My opinion is that Schoonmaker has no claim for relief
After a careful examination of the points taken by the ■defendant’s counsel, I discover no error committed on the trial, and think the judgment should be affirmed, with costs.