Chambers v. Bacon

Scott, J.: Appeal by defendant from an order denying his motion under' section 3247 of the Code of Civil Procedure, that the First Yational Bank of Durham, Y. C., be required. to pay ¿ judgment for costs rendered in favor of said defendant. The action, which was on a promissory note, was prosecuted by the plaintiff above named in behalf of the First Yational Bank of Durham, which, it is not denied, was at all times the beneficial owner of the note and cause of action and the party in whose behalf the action was prosecuted. Indeed, in 1906 the bank made a motion that as actual owner of the claim it - be substituted as plaintiff, which motion was granted, although the order thereon has not been entered, owing to the illness of the'justice who granted it. The bank is, therefore, clearly a person against whom such an order as is now applied for may properly be [195] granted. The objections are purely technical and are without merit. It is said that the proceeding should be instituted by an order to show cause rather than by a notice of motion,. This is placed upon the ground that in order to punish the bank for contempt in not paying the costs, which is the remedy provided by section 3247, the party to be punished must be brought into court by some “ process,” and that a notice of motion served upon some person hot a party to the action is not “process.” It seems to be settled that an application for an order requiring the real party in interest to pay costs may be made either by a notice of motion or an order to show cause. (Marvin v. Marvin, 78 N. Y. 541; Friedman v. Metropolitan Steamship Co., 109 App. Div. 600.) If the bank refuses to obey the order and ,a proceeding to punish it .becomes necessary it will be time enough to consider how that proceeding should be begun. The notice of motion was served in the city of New York upon a director of the bank. In this State such ai service is sufficient (Grant v.. Cananea Con. Copper Co., 189 N. Y.. 241), for clearly.the cause of action arose in this State.- Furthermore, in our opinion, the bank by moving to be substituted as plaintiff in effect made itself a party to the action, and certainly submitted itself to the jurisdiction of the court. It cannot defeat the consequence of that action by neglecting to enter" the order granting its motion. The order appealed from must be reversed, with ten' dollars costs and disbursements, and the motion granted to the extent of ordering the bank to pay, leaving the question of the enforcement of the order, in case of refusal to obey it, to be hereinafter passed upon. Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and' motion granted to extent stated in opinion. Order to be' settled on notice.