Joyce a. Holbrook.

JOYCE a. HOLBROOK.

New York Common Pleas; General Term, October, 1858.

SUPPLEMENTARY PROCEEDINGS.-APPEAL.

The orders allowed to be made in supplementary proceedings-directing the ap *plication of property and money to the payment of a judgment, and to punish for contempt (Code, §§ 297, 302)—are entirely discretionary, and an order de nying an application for them is not appealable.

Appeals from two orders denying motions in supplementary proceedings.

The facts are stated in the opinion of the court.

BY THE COURT.*-BRADY, J.-The plaintiff assuming that the defendant Holbrook, on examination upon proceedings supplementary to execution, had disclosed the facts that he had money and property in his hands belonging to himself, and that he had violated the order supplementary by disposing thereof, applied to Judge Hilton for orders to compel the application of such money and property towards the satisfaction of the judgment, and for an attachment to punish the contempt committed by disobedience to the order supplementary as above stated. Judge Hilton denied both applications. The plaintiff appeals. The answer to both appeals is the same-namely, that the order directing the application of property and money to the pay ment of a judgment, and to punish for contempt, are entirely discretionary. Sections 297 and 302 provide that the judge may order the application, and may punish for contempt; and although there are statutes in which the word "may" is to be construed as "must," this is not one. A large degree of discretion must be exercised on all applications to require the ap propriation of money and property by a judgment debtor, and there are many instances in which that discretion would be

* Present, DALY, F. J., BRADY and HILTON, JJ.

Bartow a. Cleveland.

oppressively employed, if the debtor were compelled to surrender property or money which seemed not to be exempt from execution. The proceeding is a summary one, and wherever a doubt exists of the possession and ownership of either property or money, the creditor should enforce his remedy through the receiver, or by levy under execution. Whether the creditor should be left to take this course, is one of the considerations to be entertained in determining whether the application should be granted, with a multitude of others which vary in each case, both in number and importance. And so in regard to punishing for contempt--the right, as a matter of discretion, to refuse to inflict the punishment cannot be well doubted, nor can there be any difference of opinion upon the impropriety of reviewing a discretion exercised in such a manner. This view renders it unnecessary to consider the appeals upon the merits; but were it otherwise, it could be demonstrated that the discretion was justly exercised.

Appeals dismissed with $10 costs in all, to be deducted from the judgment.

BARTOW a. CLEVELAND.

Supreme Court, Eighth District; General Term, August, 1858.

COSTS. ALLOWANCE IN FORECLOSURE.-SETTLEMENT BEFORE

JUDGMENT.

In a foreclosure action the defendant may offer to pay the amount due upon the mortgage, and such costs as he may think proper; and upon a refusal to accept the amount, he may apply to the court for leave to pay the amount due, and such costs as the court may in its discretion allow; and the court should entertain the application and permit the payment, fixing the costs, and upon the payment being made, order a discontinuance or stay of the action, as may be proper.

Upon such settlement of an action, equitable in its nature, the court may impose, as terms, payment of such allowance authorized by the Code as is equitable under the circumstances of the case.

It is competent for the parties to settle such an action, the defendant paying or securing such allowances to the attorney; and if no advantage is taken of the

Bartow a. Cleveland.

defendant, and the sum is not greater than that which the court would have allowed, the court will sanction the payment, and enforce securities given to the attorney for the same.

Appeal from judgment at special term.

In a foreclosure action in which the plaintiff in the present action was the plaintiff, and the same person defendant, the parties, on settling by payment before judgment, disagreed as to whether the defendant was bound to pay an allowance. The whole allowance claimed was $42.20. The plaintiff consented to reduce it to $27.16. The note in suit in the present action was thereupon given by the defendant in settlement, and included as a part of its amount this sum of $27.16. The defendant now resisted the payment of the note as to this sum, contending that as the plaintiff was entitled to no allowance before judgment in such an action, the note was in so far without consideration. The court at special term so held, and rendered judgment accordingly; and the plaintiff appealed.

Bartow & Olmsted, for appellant.

Wakeman & Bryan, for respondent.

BY THE COURT.-MARVIN, J.-The question here presented is not without its embarrassments. The action belongs to that class of cases in which costs may be allowed or not, in the discretion of the court. (Code, $306.)

It is not a case in which the defendant had a right to make and plead a tender, under the Revised Statutes (2 Rev. Stats., 553); such right is confined to actions at law (9 How. Pr. R., 398; Thurston a. Marsh, 5 Abbotts' Pr. R., 389; S. C., 14 How. Pr. R., 572); nor is it a case where the plaintiff had a right to the additional allowances, as provided in section 308 of the Code, as no judgment had been recovered. (Pratt a. Conkey, 15 How. Pr. R., 27.) Indeed, he had no legal right to any costs, as the allowance of costs was in the discretion of the court. (Code, § 306; Pratt a. Ramsdell.*) But when the costs

* PRATT a. RAMSDELL (Supreme Court; Eighth District, Special Term, 1857) was a foreclosure action which was settled before judgment, and the question

Bartow a. Cleveland.

are allowed, the items are specified by the statute. (Code, § 307.)

No provision is made for settling those cases in which the allowance of costs is in the discretion of the court. By sec

arising whether the plaintiff was entitled to an allowance together with the costs to be paid, it was stipulated that the payment of the debt and costs should be without prejudice to the plaintiff's right to the allowance, if the court should be of opinion that he had such right on discontinuance before judgment.

Upon application to the court at special term to determine that question, the allowance was refused, and on an appeal to the general term the decision was affirmed, for the reasons stated in the following opinion rendered at special

term:

DAVIS, J.-In an action for the foreclosure of a mortgage, costs are not allowable of course, under section 304 of the Code, but are wholly within the discretion of the court. (Code, §§ 304, 306; Gallagher a. Egan, 2 Sandf., 742.)

In cases of this kind, where the defendant is ready, and offers to pay, or brings into court the amount due on the mortgage, the parties are at liberty to apply to the court for its direction as to the question of costs; and the court, under section 306, has a discretion to allow them or not, as may be equitable and just. If the court on such application do allow the costs, the amount and the items are distinetly regulated by section 307, unless there be a "recovery of judgment," bringing the case as to an additional allowance within section 308. It was held in The N. Y. Fire & Marine Ins. Co. a. Burrell (9 How. Pr. R., 398), that the statute (2 Rev. Stats., 553, § 20) allowing a defendant to tender to the plaintiff or his attorney an amount sufficient to satisfy the demand with costs to the time of the tender, and providing that if it shall appear on the trial that the amount so tendered was sufficient to pay the demand and costs, the plaintiff should not be entitled to costs subsequent to the tender, is confined to actions at law, and does not affect actions for the foreclosure of mortgages. I think this conclusion a sound one; especially since in equity suits the costs being discretionary with the court, a tender of them cannot, in many cases, be made with certainty or safety to the rights of the parties.

A different rule prevails in actions coming within the provisions of section 304 of the Code. In such cases, the costs are fixed and certain; and the rights of the parties on settlement before judgment are declared by section 322. The ruling of MARVIN, J., in Pratt a. Conkey (15 How. Pr. R., 27), was in such an action, and is undoubtedly correct.

From these views, it follows that in an action for the foreclosure of a mortgage, where tender is made before judgment, if the parties do not voluntarily adjust the costs, either party may apply to the court for that purpose. If costs are allowed to the plaintiff without entry of judgment, the items and amount are to be governed by section 307. If the court shall be of opinion that the circumstances of the case demand it, the plaintiff may be permitted to take judgment notwithstanding the tender, and thus become entitled to the additional allowance under section 308; or if the equities of the case demand it, the court may refuse costs to the plaintiff, or even award them to the defendant.

This course preserves the discretion of the court as to the allowance of costs

Bartow a. Cleveland.

tion 322, provision is made in reference to costs upon a settlement before judgment, in the actions mentioned in section 304. That section relates to those actions known as actions at law, in which the allowance of costs is not discretionary in the

court.

What then should be the practice in a case like the present? The defendant wishes to pay the mortgage debt before judg ment, and is willing to pay costs. There is no statute giving the attorney an abstract right to any costs, nor is there any statute giving to the defendant the right to tender the amount due, with or without costs. The case of The N. Y. Fire & Marine Insurance Company a. Burrell (9 How. Pr. R., 398) was a foreclosure case, and the defendant made a tender before judgment. The plaintiff proceeded to judgment, and then applied to the court for an additional allowance, which was granted. The defendant cannot then by a tender arrest the plaintiff in proceeding to judgment, and thus deprive him of his rights relating to costs or an additional allowance. I say rights relating to costs, as those rights depend upon the discretion of the court. I suppose, however, if the court, under section 306, allows costs to the plaintiff, then he will be entitled to the percentage as given by section 308, as that section reads, "In addition to those allowances there shall be allowed to the plaintiff upon the recovery of judgment by him," &c.

I think, in a case like the present, the defendant may offer to pay the amount due upon the mortgage, and such costs as

in equity cases in its full vigor, leaving it to be exercised consistently with the equities of each case. Of course, in ordinary cases, the court, by refusing to permit judgment to be entered, would allow no more costs than the amount prescribed by section 307; and where those items had been tendered, the plaintiff would be put to show a satisfactory excuse for refusing them, or be himself charged with the costs of the application; and it is so uniformly the practice of the court to allow costs in mortgage cases, that the defendant, in all ordinary cases, should tender those items, to avoid the costs of the motion which the court would otherwise be likely to impose upon him. In a case of extraordinary labor or expense, the court, by permitting judgment to be entered for the amount tendered, could protect the plaintiff, so far at least as the additional allowance is concerned, from the effect of a tender made upon the eve of a judgment, or after the labor and expense of contesting an unmeritorious defence.

There are no facts disclosed in the case before me to call for the special interference of the court; and as it appears that the costs allowed by section 307 have been paid, the motion must be denied.