52 Barb. 183 | N.Y. Sup. Ct. | 1866
This case, though apparently only an appeal from an order, or perhaps from two orders, involves in its consideration important questions- of practice, as well as the construction of two sections of the Code. It also involves, collaterally, several other orders made in the action, besides the decree of the surrogate; and the judgment of the general term. The motion is certified to this district by reason of the disqualification of the justices in the third district on account of interest or otherwise. The appellant, as administrator of "Peter Williams, deceased, had a final accounting before the surrogate of Columbia county, from whose decree he appealed to the general term. This was certified to the court in the second district, where the appeal was heard, and the decree of the surrogate affirmed, with costs. The respondents (here) then made a motion to the general term of the second district, in December, 1864, to be allowed to charge the appellant, personally, with the costs of the appeal. This motion was denied or dismissed at said general term, with costs. The respondent then, afterwards, in February, 1865, made a motion in the action, at special term in the third district, without notice to the appellant, for leave to enter the judgment of the general term “ nunc pro tunc,” as of the 4th of May, 1858, that being a day prior to the death of one of the respondents. This motion was granted, and the order made therein, added, “ that the
It is clear, that this was a question affecting a substan
I do not intend to hold that the form of the judgment of the general term, as modified by the special term, “ that the respondents recover of the appellant the sum. of §278.46 costs, and disbursements of the appeal,” made the defendant personally liable for such costs. I think something more must be added, to effect that object. It requires an adjudication by the court that he is to be personally liable, “for mismanagement or bad faith.” (Code, § 317.) This question, however, it is not necessary to decide in order to reverse the order appealed from.
James, Mosehrans, Moches and Jotter, Justices.]