Sunney v. Roach

Brady, J. —I regard this action as an action for equitable relief, and not therefore one of the cases included in section 304 of the Code. Mot being one of those cases, the costs are within the discretion of the court, and I think this one of the cases in which no costs should be allowed to the defendants, and that the plaintiff should be permitted to discontinue without costs. My reasons are these. The plaintiff appealed in good faith from the judgment of a single justice of the Marine Court to the general term of this court; and that, at the time of the appeal, was the established practice, and the only judgment from which an appeal could be entertained in this court. The appeal was perfected by a compliance with the provisions of the Code, as to security and otherwise, and the defendant notwithstanding caused an execution to collect the judgment to be issued in the court below. The plaintiff then asked the interposition of this court to protect him pending an appeal, and, it is true, asked damages for the interference of the defendants with his property under [18] the execution. The object of the application was to restrain the proceedings on that execution. Security had been given for the judgment; the question of the mode of appeal was in doubt, and the proceedings of the defendants under the circumstances were unnecessary, and though legal, as the result has proved, could not stand by the rules of equity. The plaintiff’s appeal in this action was founded upon and justified by the decisions of this court, which were conclusive upon the subject until overruled by the Court of Appeals. If the defendants are dissatisfied, an appeal may he taken. Ordered that the plaintiff have leave to discontinue without costs.