Fischer v. Raab, 56 How. Pr. 218

56 How. Pr. 218 | New York Court of Common Pleas | 1878

J. F. Daly, J.

Plaintiff having moved for a temporary injunction, which motion was opposed by defendants, an issue was raised upon the affidavits as to whether plaintiff had not, at a meeting of the society of which he and defendants were members, held May 6, 1878, made a motion to cancel or “ overthrow ” the proceedings of a prior meeting, held April 28, 1878, and continue the society. . As the effect of such a motion by plaintiff would' estop him from claiming, as he did on the application for an injunction, that the society was dissolved, both parties desired me to refer the question of fact to a referee; the question as to who should pay the expenses of the'reference was then discussed. The plaintiff’s counsel had charged that the forty-two defendants, who made affidavits on the motion against him, being German, unacquainted with the English language, were misled in signing and swearing to their affidavits containing the averment that he made' the motion imputed to him at the society meeting, and the truth or falsity of his charge, it was agreed should determine whether he should, or should not, pay the referee’s fees ; if the forty-two defendants, or a majority of them, swore that they made the statement which appeared in their affidavits, he was to pay the fees; an order of reference containing that provision, in substance, was thereupon entered by consent.

The reference proceeded to a determination by the referee who gave a written notice and certificate that his report was ready for delivery, and that it was in favor of defendants, and that a majority of the forty-two defendants testified before him that they did make, for the purpose of their affidavit, the statement that plaintiff- made the motion at the society meeting imputed to him; that the fees of the referee were $130, and that plaintiff was required pursuant to the order to pay the fees.

I made an order upon this certificate and notice and the affidavit of defendants’ attorney requiring the plaintiff to pay to the referee his fees within three days or show cause why he should not be committed and the injunction vacated and the motion for injunction and the appointment of a receiver denied and his proceedings stayed until such fees were paid.

The order and certificate and notice and affidavit were served upon plaintiff personally as directed by the order. The plaintiff appeared by his attorney of record and objected:

1st. That this application, so far as it related to the injunction and receiver, could only be made upon .the referee’s report on the question submitted to him, and upon notice to defendants demanding affirmative relief, i. e., upon plaintiff’s moving on the referee’s report.

2d. That no contempt is alleged and plaintiff cannot be punished.

3d. Ho demand of the fees has been made; that the plaintiff is not required to pay the fees.

4th. That the court can take no notice of the report until it is filed.

5th. That the order to show cause why plaintiff should not be punished for contempt should be served on his attorney, and that this has not been done. •

Plaintiff does not deny that a majority of the forty-two defendants have sworn that they made the statement which appears in their affidavits. He objects only to the mode in which notice of the fact is brought to the court.

I deem the proof of the fact sufficient and proper. The referee certifies to it and it is not denied.

Service of the order requiring plaintiff to pay, and to show cause in default thereof why he should not be punished for contempt, was properly made on plaintiff personally (Albany City Bank agt. Schermerhorn, 9 Paige, 372). If he could not be found it might be served on his attorney (Pitt agt. Davison, 37 N. Y., 35). The object is to give notice to the party proceeded against. He has suffered nothing by the failure to serve his attorney as well as himself. His attorney appeared, on the return of the order to take the objections above specified,-on plaintiff’s behalf. Demand of the fees was not necessary in addition to the service of the order demanding him to pay. The order to pay not having been complied with the party may be punished as for a contempt (Code, sec. 14, sub. 3). The party has had his opportunity to be heard. The amount of fees is not disputed. The rate of compensation to the referee was agreed upon on the reference.

I am disposed to grant the order for commitment as prayed for. The plaintiff applied for this reference and stipulated to pay the expenses of it, if it turned out that the defendants had understandingly made the affidavits presented on the motion. Knowing the expense and vexation to parties of references to determine disputed facts arising in the course of a motion, I endeavored to dissuade counsel from this course, but the course was taken upon the strict agreement as to paying the expense which is embodied in the order of September 17, 1878, directing the reference.

It now appears that, after a most bitter contest before the referee, the fact upon which plaintiff’s liability for the fees depends is found against him; whereupon he simply disregards the matter, neglects to take up the report, and is proceeding to press his cause for trial at the equity term without reference to the motion for injunction and receiver, or the questions referred for determination. Justice requires that he should be held to his stipulation. He agreed to pay the expenses of the reference in a certain event; his agreement was embodied in the order of reference, the event upon which his liability depends occurs ; he is ordered to pay and he refuses, giving no reason. A commitment should issue