Tucker v. Gilman ( 1891 )

Van Brunt, P. J.

On the 2d day of July, 1890, order was made and entered directing the payment by Preble Tucker of certain costs of this action upon the ground that he was beneficially interested therein. The said Tucker appealed to the general term and to the court of appeals from said order. 26 H. E. Rep. 756. In both these tribunals the order was fully affirmed with costs, and in January, 1891, certified copies of all the orders were served upon said Tucker, and demand made for the payment of said costs. Tucker refused to pay the same, and thus application was made to punish him for a contempt, and the court made an order adjudging him in contempt for failure to pay costs as directed in order of July 2d, and fined him the amount of such costs, and both parties appeal. The first point made by the appellant Tucker is that the order was improperly made because there was nothing before the court to show that his refusal to pay the costs did defeat, impair, impede, or prejudice any of the rights of the defendant in this action. The fact that the appellant Tucker has refused to pay a sum of money is apparent. That he has refused to pay it as directed to the attorney of the defendant for her use is also conceded, and it needs no further proof to show damage; it follows as a matter of course. The fact that the orders directed the payment of the money to defendant’s attorney did not .alter the question. That form of order has been approved in this case by the court of last resort, and it is now too late for Preble Tucker to quibble at terms. He was bound to comply with it, and if lie did not he was guilty of contempt. The amount of fine imposed freely indemnified the defendant, and although the court might have imposed an additional sum, yet we will not interfere in the discretion in this respect of the court below. The costs of appeals were not included in order to show cause, and for this reason, if for no other, were properly refused consideration. This proceeding was a motion in an action. It was so considered by the moving party, as every paper is entitled in the action. The order appealed from should be affirmed, without costs. All concur.