1 Paige Ch. 647 | New York Court of Chancery | 1829
The Chancellor :—It is a general rule that a party cannot apply to the court for a favor while he is in contempt. (Vowles v. Young, 9 Ves. 173; Prac. Reg. 138; Green v. Thompson, 1 Sim. & Stu. 121.) And the complainant is not obliged to accept an answer until the party has cleared his contempt for neglecting to appear or answer. If the party does not insist upon his costs, but accepts the answer, and proceeds thereon, he cannot afterwards object that those costs have not been paid. (Anonymous, 15 Ves. 174; Smith v. Blofield, 2 Ves. & B. 100.) In this case the proofs have been regularly closed. The defendant is in contempt for not paying the costs of a former motion which failed. An *attachment was issued for the costs, but they have not been paid. The favor now asked of the court ought not to be granted until the defendant clears himself of his contempt, by the nayment of those costs. I do not intend to be understood as applying this principle to an application which is a matter of strict right; as a motion to set aside proceedings for irregularity; or to dismiss a bill for want of prosecution.
The motion for leave to examine this witness must be granted, without prejudice to the complainant’s right to proceed to a hearing the first opportunity. But the order for leave is only upon payment of the costs of opposing this motion; and the costs necessary to be paid to purge the defendant’s contempt.
