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and 118 New York State Reporter etc. This order to show cause was returnable upon May 25, 1603. Upon the hearing of that motion the plaintiff's attorney filed his affidavit showing that the order of May 22d had been entered; that he had appealed therefrom, and had served his notice of appeal, together with the printed copies of the papers, as required by the general rules of practice, with notice of argument, upon defendant's attorney; and that said attorney had accepted and retained the same. He further showed that no attempt to procure the order aforesaid, entered by him on May 13th, to be resettled or amended, had been made until after plaintiff's appeal aforesaid had been perfected, and the same ready for argument. This statement was not disputed by defendant's attorney. The court, however, granted defendant's motion, with $10 costs against the plaintiff. From the order granting the defendant's motion aforesaid, this appeal is taken.
The defendant, upon this appeal, as upon the appeal from the order of May 22d, urges (1) that, the order having been entered prior to the expiration of 24 hours after it was granted, the same was void; and (2) that the plaintiff was stayed from all proceedings by failure to pay the costs previously imposed by the order of May 4th and 6th.
We have disposed of her first point in our determination of the appeal from the order of May 22d. See opinion in No. 4.
At the June term of this court the defendant moved that the printed papers upon the appeal from the order of May 22d be returned to the City Court, upon the ground that the order appealed from was superseded by the order herein appealed from; also urged that the appeal could not be heard upon plaintiff's notice of argument, for the reason that he was stayed for nonpayment of motion costs. We then held, for reasons stated in the opinion (see opinion in Allen v. Becket, 85 N. Y. Supp. 192, June Appellate Term) that the plaintiff was not stayed. Additional reasons are that the stay contemplated by section 779, Code Civ. Proc., applies to some progressive steps taken in the action by the party stayed. No such steps were taken by the plaintiff in entering and appealing from the order. He was simply protecting rights that had been attacked by the defendant.
It also follows that, as the "second" order entered by the defendant on May 13th was entered without warrant, the subsequent attempt to resettle the same falls with the failure to sustain that order.
Order of May 25th reversed, with $10 costs and disbursements. All concur.
ALLEN V. BECKET.
(Supreme Court, Appellate Term. November 18, 1903.) 1. APPEAL-RECORD-BRIEFS.
An appellate court is bound only by the record as to the circumstances of the entry of an order in the court below, and not by statements in
briefs of counsel. 2. ORDERS-IRREGULARITY OF Entry.
The entry of an order before 24 hours had elapsed after it was granted does not render it void, but only irregular.
Where an order in favor of defendant is entered irregularly by plaintiff, a duplicate of the order, entered by defendant, should be set aside on plaintiff's motion; the proper practice being for the defendant to move to vacate plaintiff's order and substitute his own. Appeal from City Court of New York, Special Term.
Action by Willard S. Allen against Mary A. Becket, doing business under the name of Haeger Storage Warehouses. From an order denying plaintiff's motion to set aside a duplicate order in the trial court, he appeals. Reversed.
Argued before FREEDMAN, P. J., and BISCHOFF and
James A. Allen, for appellant.
FREEDMAN, P. J. On May 4, 1903, the order denying plaintiff's motion to vacate the execution was made. On May 6th plaintiff made an application for an order resettling the above-mentioned order. This motion he was allowed to withdraw upon payment of $10 costs, and an order to that effect was entered the same day. On May 8th he again applied for a resettlement of the order of May 4th, which was denied; and on May IIth he entered, upon notice to the defendant's attorney, the order denying that motion. On May 13th he appealed from the orders of May 4th, May 6th, and May nith, which appeals we have decided in the appeals from orders No. 3, supra. 84 N. Y. Supp. 1009. After these appeals had been taken, and upon the same day (May 13th), the defendant caused to be entered, without notice, an order substantially similar in all respects to the order theretofore entered and appealed from by plaintiff, which order denied plaintiff's motion for a resettlement of the order of May 4th. Plaintiff's attorney thereupon requested the defendant's attorney to consent to an order vacating said duplicate order, which was refused. Thereafter, and upon May 22d, upon an order to show cause, plaintiff moved for an order vacating said duplicate order, which motion was denied, and from the order denying such motion this appeal comes up.
The defendant urges two reasons for sustaining the order of the court below in refusing to vacate the duplicate order entered as aforesaid: First, that the order entered by the plaintiff upon May 13th was void, having been entered before 24 hours had elapsed after it had been granted; and, second, that the plaintiff was stayed for nonpayment of the motion costs imposed by the prior orders appealed from. These objections appear nowhere but in the brief of the defendant's attorney. Nothing of the kind appears in the record, which is certified to by the clerk as containing the whole of the original papers. The defendant submitted no papers upon the return of the order to show cause, and the order itself recites no grounds for the denial of the motion. It simply says, “The plaintiff having * * * moved to vacate a second order," etc. This court is bound by the record, and not by statements contained in briefs of counsel.
and 118 New York State Reporter The entry of defendant's order in question was needless, and could serve no valid purpose. Its entry merely served to incumber the records of the court, and its merits were already pending upon an appeal from a precisely similar order. Its retention upon the records of the court in case the order appealed from was vacated would have presented the anomalous position of one order set aside upon appeal, with a like order remaining unrevoked; nor should the plaintiff have been compelled to appeal therefrom. If the objections to the entry of the order by the plaintiff were contained in the record, and were undisputed, it would not render the order so entered void, but merely irregular. Wessels et al. v. Boettcher, 142 N. Y. 212, 36 N. E. 883. The defendant should have moved to vacate plaintiff's order, and to have had her order substituted therefor.
The order denying the plaintiff's motion to vacate the defendant's order of May 13th is reversed, with $10 costs and disbursements of the appeal therefrom, and the motion granted, with $10 costs. All concur.
AQUELINA V. PROVIDENT REALTY CO. OF NEW YORK.
(Supreme Court, Appellate Term. November 18, 1903.) 1. PROPOSED LEASE-DEPOSIT-RECOVERY.
Where a sum is deposited by one as a pledge of good faith in the making of a lease, he is entitled to recover it when, upon inspection, he refuses to execute the lease. Appeal from Municipal Court, Borough of Manhattan.
Action by Nicola Aquelina against the Provident Realty Company of New York. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
Townsend, Dyett & Levy, for appellant.
PER CURIAM. The evidence in the case fails to show a meeting of the minds of the contracting parties on the terms of the proposed lease. No lease was executed, and no rents became due by virtue of it. The $200 was left by plaintiff with defendant as a pledge of good faith, and good faith on the part of the defendant demanded its return when, upon inspection, the plaintiff refused to execute the lease.
The judgment must be affirmed, with costs. All concur.
KELLOGG v. STODDARD et al. (Supreme Court, Appellate Division, Fourth Department. December 1, 1903.) 1. DIVORCE-ORDER FOR PAYMENT OF COUNSEL FEES-DEATH OF HUSBAND.
An order made under Code Civ. Proc. $ 1769, providing that pending an action for divorce or separation the court may make an order requiring the husband to pay money necessary to enable the wife to carry on the action, loses its force on the death of the husband, and cannot after
wards be enforced. 2. SAME-DIRECTING PAYMENT TO ATTORNEY.
Under Code Civ. Proc. $ 1769, providing that pending an action for divorce or separation the court may make an order requiring the husband to pay money necessary to enable the wife to carry on the action, an order directing payment to her attorneys cannot be sustained.
McLennan, P. J., dissenting.
Action by Virgil K. Kellogg against George A. Stoddard and another, executors. From a judgment for plaintiff, and from an order overruling a demurrer to the complaint (81 N. Y. Supp. 271), defendants appeal. Reversed.
Harriet Stoddard commenced an action in the Supreme Court for a judgment of separation against her husband in January, 1901, the law firm of which the plaintiff is a member appearing in her behalf. Upon her motion an order was granted at Special Term "to pay to the plaintiff's attorneys in said action the sum of $250 as and for their counsel fee therein.” The order was entered April 9, 1901, and a certified copy served on the defendant May 10th thereafter. No part of the sum awarded was ever paid, and Mr. Stoddard died May 25, 1901. The plaintiff, who claims he alone of his firm represented the plaintiff in the separation action, presented a claim to the executors of Stoddard, deceased, for said sum of $250. The claim was rejected by the executors, who refused to refer the same, and this action followed to enforce the collection of the sum allowed by said order. The demurrer interposed on the ground that the complaint did not state a cause of action was overruled, with leave to answer in 20 days, and upon failure so to do the interlocutory judgment or order provided for judgment absolute in favor of the plaintiff, and such final judgment was thereafter entered, as no answer was served.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISČOCK, and STOVER, JJ.
Wilbur A. Porter, for appellants.
SPRING, J. The only authority for granting an order like the one which is the basis for the plaintiff's claim is section 1769 of the Code of Civil Procedure. Poillon v. Poillon, 75 App. Div. 536, 78 N. Y. Supp. 323. That section permits, among other things, the court, in its discretion, during the pendency of the action, to make an order "requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action." This is therefore a provisional remedy, dependent upon the pendency of the action, and, as the action abates with the death of the husband, its termination necessarily takes the order down with it. Johns v. Johns, 44 App. Div. 533, 60 N. Y. Supp. 865, affirmed on opinion below, 66 N. Y. 613, 59 N. E. 1124; Matter of Thrall, 12 App. Div. and 118 New York State Reporter 235, 42 N. Y. Supp. 439, affirmed on opinion below 153 N. Y. 645, 47 N. E. IIII; Field v. Field, 15 Abb. N. C. 435; Millady v. Stein, 19 Misc. Rep. 652, 44 N. Y. Supp. 408. In the Johns Case the plaintiff, in 1882, obtained a judgment of divorce dissolving the marriage relation, and requiring the defendant to pay to her $2,400 a year, in monthly installments, during her life. The husband complied with the decree until his death in February, 1898. The plaintiff commenced an action to make the judgment a charge upon his estate continuing during her lifetime. The trial court dismissed the complaint upon the ground that the judgment spent its force upon the decease of the husband, and the judgment of dismissal was affirmed on appeal. In the Matter of Thrall, supra, the action had been discontinued after the order was granted allowing alimony pendente lite, and the wife endeavored to enforce the same against the assignee for the benefit of the creditors of the husband to the date of the discontinuance of the action. The court denied her application, and the order was affirmed; the court saying at page 237, 12 App. Div., page 440, 42 N. Y. Supp.:
"All intermediate, preliminary, and provisional orders necessarily fell when the action ceased to exist. It would have been the same had the complaint been dismissed as to the defendant, in which case it certainly could not be claimed that provisional remedies survive, although judgment had been rendered in favor of the defendant."
The disposition of the cases cited rests upon the proposition that the application is a statutory one, and the peculiar relief granted pending the application growing out of the cause of action is merely incidental to the cause of action itself. When the action is ended, the provisional remedies arising out of it terminate also. They are continued along in a pending suit as features of it, and not as independent proceedings. The code provisions for the enforcement of an order of this kind as by sequestration of the property or by contempt proceedings are all in the action, and exist by virtue of its pendency. The payment of the money to the wife pursuant to section 1769 of the Code is "to enable her to carry on or defend the action.” It is an allowance for the purpose of enabling her to subpæna her witnesses, prepare for and meet the expenses of the trial, including payment of counsel. The money is expected to be used chiefly, at least, to pay necessary expenses accruing after the granting of the order. Beadleston v. Beadleston, 103 N. Y. 402, 8 N. E. 735; McCarthy v. McCarthy, 137 N. Y. 500, 33 N. E. 550. Issue was joined in this action February 13, 1901, and the order directing the husband to pay the $250 was made April 6th following, so that the ordinary expenses incident to the prosecution of the action had not then been incurred to any large extent. The learned court below sustained the order also upon the ground that the services rendered to the wife were necessary, to pay for which she could pledge her husband's credit, relying upon Naumer v. Gray, 28 App. Div. 529, 51 N. Y. Supp. 222, and the same case, 41 App. Div. 361, 58 N. Y. Supp. 476. It may be, after the discontinuance of the action of separation, so that the wife is received back by her husband, and is thereafter supported and maintained by him, thus, in effect,