JONES v. SHERMAN

JONES v. SHERMAN. N. Y. City Court, General Term ; February, 1887. 1. Supplementary proceedings; practice on appeal.] Although proceedings supplementary to execution are made distinct special proceedings by section 2433 of the Code of Civil Procedure, yet the mode of reviewing orders made therein, and the practice relating thereto, are the same as if the order had been made in an ordinary action. 2. The same ; costs on appeal from order.~\ Upon reversal on appeal of an order adjudging defendant in contempt made on a motion in supplementary proceedings, the costs recoverable are limited to §10 and disbursements. Appeal from an order made upon motion for retaxation of costs. The defendant was adjudged guilty of contempt in supplementary proceedings had herein ; he appealed to the general term and the order for committal was reversed, with costs. The defendant claimed and the clerk taxed §60 costs, besides disbursements, in defendant’s favor, under section 3240 of the Code of Civil Procedure. The plaintiff moved for retaxation, and the special term reduced the amount to §10 costs and disbursements. From this order the defendant appeals. L. F. Post, for the defendant, appellant. N. Quaohenhos, for the plaintiff, respondent. [MAJORITY — McAdam, Ch. J.] McAdam, Ch. J. Proceedings supplementary to execution are no longer regarded as proceedings in an action, but distinct “special proceeding's’’(Throop's Code, § 2433 and notes), yet the mode of reviewing orders made therein, and the practice relating thereto, are the same as if the order had been made in aw ordinary action (§ 2433, subd. 2). The amount of costs recoverable in such proceedings is regulated by sections 2455 and 2456. The motion to punish for contempt went to the general term. It was, therefore, nothing more than a continuation of the motion on appeal in the same court. There, it was in the category of motions, and no more than $10 could be allowed as costs, besides disbursements (Phipps v. Carman, 26 Hun, 518). The rule is that appeals from orders are merely regarded as motions for the purpose of costs (Parsons on Costs, 99). As the costs in these proceedings are specially prescribed, section 3240, which relates only to costs in special proceedings “ not otherwise regulated,” has no application to the present contention. The court below was right in limiting the costs on appeal to $10 costs and disbursements (People v. Cooper, 10 Weekly Dig. 77), and the order must be affirmed, with costs. Hyatt, J., concurred.