49 N.Y.S. 916 | N.Y. App. Div. | 1898
Upon a former application, the defendants sought to obtain a summary direction to the plaintiff to pay them the sums of money, and endeavored to enforce such direction by proceeding against the plaintiff for a contempt. In affirming the order denying the motion, this court held (Harris v. Elliott, 19 App. Div. 60, 45 N. Y. Supp. 916) that the defendants’ remedy was either to proceed in the pending suit or bring an action on the stipulation. The only difference between the present and the former motion is that in this, instead of asking payment directly - to them, they ask that the same sums be paid into court. Such a difference is not, however, one of substance, as they are asking here for substantially the same relief, namely, upon a motion, to secure the payment by the plaintiff of the money in a summary way. We think the defendants are concluded by our decision on the previous application; and, though some misapprehension was created in the mind of the learned judge below in disposing of the application, as shown by his opinion, we think the -conclusion reached by him was right.
The order appealed from should be affirmed, with $10 costs and disbursements.
