General
COLNE v. GIRARD
19 Abb. N. Cas. 288·New York City Court·1887·NY
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Opinion
COLNE v. GIRARD.
N. Y. City Court, Special Term ;
September, 1887.
Costs to creditor in supplementary proceedings.]—Under Code Civ. Pro; § 2455, the court may grant costs to the judgment creditor in proceedings supplementary to execution, although the debtor pays ther amount due and therefore no examination is had.
Motion by judgment debtor to dismiss proceedings supplementary to execution.
After the proceedings were begun, and before any examination of the debtor, the balance .due was paid by him. Upon his motion to dismiss, the judgment creditor asked for an award of costs, under Code Civ. Pro. § 2455, which provides:
“ The judge may make an order allowing to the judgment creditor a fixed sum, as costs, consisting of his witnesses’ fees and other disbursements, and o'f a sum, in addition thereto, not exceeding, thirty dollars; and directing the payment thereof, out of any money which lias come, or may come, to the hands of the receiver, or of the sheriff; or, within a time specified in the orde", by the judgment debtor, or - other person against whom the' special proceeding is instituted.”
[MAJORITY — McAdam, Ch. J.]
McAdam, Ch. J.
The defendant moves to have the supplementary proceedings instituted against him dismissed on payment of the balance due upon the judgment. He has not been examined, and on that account urges that no-costs can be awarded against him.
Section 2455 of the Code is sufficiently comprehensive to cover the case stated, and a fixed sum may be awarded to the creditor on terminating the proceeding by payment, although the debtor has not been examined under the order. The next section (2456), providing for costs to the judgment debtor, is limited to cases in which an examination has been had ; and this restriction is the feature which distinguishes th'c two sections. The limitation is not found in section 2455, which regulates the costs which may be allowed to the creditor.
Upon paying the balance due on the judgment, with $15 costs of the supplementary proceedings, the defendant’s motion will be granted (see § 2454), and the judgment canceled of record.