Struppmann v. Muller

Freedman, J. TJpon proof that the appeals of the infant defendants, Muller from the orders of December 22, 1876, had been withdrawn pursuant to a stipulation entered into by the parties to said appeals, the general term, on February 23, 1877, granted an order dismissing said appeals without costs, and such order was duly entered. This having been done, another party to the action, who [429] had no interest in said appeals, not having in fact appealed, has no right to procure, at. a subsequent general term, an order of affirmance of the orders of December 22, 1876 by default. The party appellant or the parties appellants are the only parties who can move the court in favor of the appeal. The order of March 5, 1877 should be vacated, and set aside.” From this order Mr. Daniel T. Eobertson, without first obtaining leave of the court, or authority from Mr. Struppmann the guardian, appealed to the court of appeals on behalf of the infants, plaintiffs. Thereupon the appeal was not prosecuted, and the attorney for the infant defendants, respondents, served notice under Eules 2 and 7 of the court of appeals to file the return and print and serve papers on the appeal; this not being done, a motion was made in the court of appeals to dismiss the appeal with costs of appeal and motion, and that the attorney pay the same personally. The court of appeals made the following decision: “ Motion to dismiss appeal granted with costs. Motion to compel the attorney to pay costs, personally, must be made in the court below after the judgment has there been entered.” Judgment was thereupon entered in favor of the infant defendants, respondents, against the infant plaintiff, appellants for the sum of forty-eight dollars and nine cents costs of the appeal. This motion was then made on behalf of both infants plaintiffs and defendants to compel Mr. Eobertson to pay this judgment. George F. Langbem, for the infant plaintiffs and defendants, for the motion argued: I. That the infants being wards of the court, were under its special care and protection. That it would be a matter of great injury and injustice for the innocent infant plaintiffs to pay the said judgment, arising from an appeal taken without leave or authority, and that too, from a discretionary order which was not appealable. That it would be equally an injury and unjust [430] for the infant defendants, not to be paid the expense and costs their representatives were put to by the willful acts and misconduct of Mr. Bobertson. II. The attorney was informed by the general term that he had no right to do what he had done, and still went further in the continuance of what he was judicially informed he could not do; he caused the costs and expenses of appeal, and should be held personally liable therefor (People agt. Bradt, 6 Johns. Repts., 318; see, also, Waring agt. Barnet, 2 Cow., 460; Anonymous, 2 id. 589). III. That the conduct of Mr. Bobertson could not he ascribed to any other than improper motives. He certainly proceeded without just cause, and should he made hable to pay the costs and disbursements (Matter of Kelley, 3 Hun,, 636; Matter of Beckwith, id., 443). IY. He should also he fined for his misconduct (Livingston agt. Livingston, 2 Barb., 396). JDa/niél T. Bobertson, in person, in opposition, claimed that the proceedings in the action had been fraudulent, and that he had felt justified in appealing. That he had sent affidavits to the court of appeals in opposition to the dismissal of the appeal, and that he had appealed in good faith. Sedgwick, J. At least, after the decision of the general term, the plaintiff’s attorney was judicially informed that the attorney appeared for a party who had no right to take any proceedings on that appeal, and thereafter the attorney prosecuted the appeal to the court of appeals at his own risk, as if he were the appealing party. The motion that the attorney is to pay the costs of the appeal to the comí of appeals, is granted with five dollars costs. In other respects the motion is denied. • Order entered directing the attorney to pay the judgment for costs forty-eight dollars and nine cents, and five dollars costs, within fifteen days.