| New York Court of Common Pleas | Nov 15, 1879
The plaintiff stipulated to pay the referee’s fees in case he failed to prove before that officer that certain persons had made an affidavit in ignorance of its contents. He also obtained an order staying proceedings upon the application for an injunction until the report of the referee had been brought into court. The obtaining of the report from the referee was, therefore, essential to the further hearing of the motion for the injunction. It is true that the court might, if so disposed, have vacated the injunction order without waiting for the referee’s report, but such was not its pleasure. The referee was not obliged to give up his report until his fees had been paid, and unless the court could compel the plaintiff to take up the report, it would have been in the plaintiff’s power to postpone indefinitely the determination of the motion for the injunction. Especially would this be so if the court deemed the production of the report essential to a proper understanding of the case.
The only obstacle to the obtaining of the report was the refusal of the plaintiff to pay the fees which he had stipulated to pay. Under these circumstances it was, I think, eminently proper for the court to make such an order as would result in the bringing of the report' into court. It is true that the order made required the payment of money, but that did not prevent the enforcement of it in the manner provided for the enforcement of other lawful orders. The-regular method of compelling obedience to orders is by process of contempt. Such has always been the practice of the court of chancery. Formerly interlocutory costs were col
The order was not, in any sense, one for the payment of interlocutory costs. They could not be allowed as costs of motion {id.l¡); nor could any execution be issued to collect the referee’s fees; there was no reason, therefore, why obedience to it should not have been enforced by process of contempt. We think, however, that the method of collecting these referee fees should have been the same as that formerly pursued for the collection of interlocutory costs. Buies of practice rest upon considerations of fairness no less than upon convenience. It seems to us fair that a person called upon to pay money should have presented to him evidence that the person who demands :t has authority to receive it. The demand for interlocutory costs should, for this reason, be made only by the party entitled to them, or by some person authorized by him to collect the money (Wilkins agt. Stevens, 19 Vesey, 117; 2 Archibold’s Practice, p. 340; Jackson agt. Sackett, 6 Cowen, 39). A personal demand upon the plaintiff should have been made (People agt. Bennett, 4 Paige, 282), and the authority of the person making the demand should have been exhibited. In a word, the same reasons which required these formal proceedings for the collection of costs apply to the collection of the referee’s fees in this case. The clerk of Mr. Langbein, who made the demand, does not appear to have had any authority from the referee, and he did not exhibit to the plaintiff any evidence of his right to receive
This stipulation must be handed up with the proposed order of reversal.
Chables P. Daly, chief justice, concurred.
Hemobandum. — The general term itself wrote and handed down the following order:
At a. general term of the court of common pleas, held at the county court-house, in the city of Hew York, on the 19th day of January, 1880.
Present — Daly, chief justice, and Van Hoesen, justice.
JOHN FISCHER, Appellant, agt. JOHN RA AB and others, Respondents. ___
' The plaintiff’s appeal from the order of judge J. F. Daly, entered December 4, 1878, having been reached in its order on the calendar, and argued by Hr. Wehle for the appellant, and by Hr. Langbein for the respondents, it is ordered that, if the appellant shall forthwith file a stipulation not to bring any action on account of his imprisonment, the order appealed from be reversed, without costs; but that said order be affirmed if the appellant shall refuse to give such stipulation. The order of reversal is upon the ground that the person who made the demand upon the appellant did not, when making such demand, exhibit his authority to collect the money, and
The appellant having refused to give the stipulation, and it being so recorded, the general term thereupon made the following order:
At a general term of the court of common pleas, held at the county court-house, in the city of New York, on the 19th day of January, 1880.
Present — Hon. Challes P. Daly, chief justice, and Geolge M. Van Hoesen, justice.
JOHN FISCHER, Appellant, agt. JOHN RAAB and others, Respondents.
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An order having been entered on the 19th day of January, 1880, ordering that if the appellant shall forthwith file a stipulation not to bring any action on account of his imprisonment, the order of judge J. F. Daly, entered December 4, 1878, appealed from, be reversed, without costs, but that the order be affirmed if the appellant shall refuse to give such stipulation, and said order of January 19, 1880, reciting that “ the order of reversal is upon the ground that the person who made the demand upon the appellant, did not, when making such demand, exhibit Ms authority to collect the money, and that ground being of a purely technical nature, the giving of a stipulation not to sue is exacted as a condition of the reversal. The reversal is without costs, because of the extremely bad faith manifested by the appellant and his attorney throughout the proceedings,” and it appearing by a written memorandum made by chief justice Daly, now on file with the clerk of this court, as follows : “ Plaintiff elects not to stipulate; C. P. D,” on motion of J. C. Julius Langbein, Esq., attorney