Parkinson v. Scott. Motion to discontinue an action without costs. Action by James H. Parkinson, an infant, by James E. Parkinson, his guardian, against John Scott for personal injuries. The further facts are fully stated in the opinion. H. M. Requa, Jr., for the motion. Jared F. Harrison, opposed. GILDERSLEEVE, J.-The plaintiff served the summons,. complaint and notice of motion for leave to sue as a poor person, on the defendant, John Scott, on August 22, 1893; on August 28, 1893, the defendant served his answer and notice of trial; and on August 31, 1893, the motion for leave to sue as a poor person was argued and granted, and an order entered thereon. Subsequently the plaintiff became convinced that he had sued the wrong person, and he now moves for leave to discontinue, without costs. The defendant has been put to the trouble and expense of answering, of serving notice of trial, and of opposing the motion for leave to sue as a poor person. I am of the opinion that the defendant should have. $25, the statutory costs before and after notice of trial, as a condition of granting the order of discontinuance. I do not think the entry of the order granting leave to sue as a poor person deprives the court of authority to impose. affidavit that because of poverty he is unable to pay costs, and believes himself entitled to relief. Officers of the court are required to perform their duties and witnesses to attend as in other cases, and the court may request an attorney to represent such poor person. But the court may dismiss a cause so brought if it appears that the allegation of poverty is untrue or the alleged cause of action is frivolous or malicious. A judgment for costs may be rendered as in other cases, provided that the United States shall not be liable for the costs thus incurred. Krooks v. L. & C. Wise Co. costs as a condition for discontinuing the action, in a case like this. The Code ( 461) provides that, in the case of one suing as a poor person, "if judgment is rendered against him, or his complaint is dismissed, costs shall not be awarded against him." But in this case an innocent party has been sued and put to trouble and expense, through the blunder of the plaintiff, and I do not think the above statute applies to a motion made by the plaintiff to be allowed to discontinue without costs. It has been held that costs, in a case where the plaintiff sues as a poor person, can be imposed as a condition for opening plaintiff's default (See Elwin v. Routh, 1 Civ. Pro. R. 131; Neugrosche v. R. R. Co., 1 State Rep. 302); and I think the same principle can be extended to a case like the one at bar. Motion is granted, on payment of $25 costs. KROOKS v. L. & C. WISE CO. N. Y. Supreme Court, Special Term, First District; October, 1893. Discovery and inspection; attachment.] Upon motion to vacate an ex parte order obtained by plaintiff directing the sheriff to take possession of defendant's books of account under an attachment, and to permit the plaintiff to examine them, it appeared that the books were locked up in defendant's safe, and that the sheriff did not have the combination.-Held, that the ex parte order should be modified by striking out the direction to the sheriff to take possession of the books, as it might be construed as a direction to break open the safe and destroy property; but that plaintiff might have an order directing the sheriff to allow him to examine any books in the sheriff's possession, or which may come into his possession, under the attachment, so far as may be necessary to discover property upon which an attachment might be levied.* *The Code of Civil Procedure, § 644, requires the sheriff in levying an attachment to "take into his custody all books of account, vouchers and other papers relating to the personal property at Krooks v. L. & C. Wise Co. Motion to vacate an order. An action was commenced by Samuel J. Krooks, against the L. & C. Wise Company by the issuance of a warrant of attachment, and a levy was made thereunder by the sheriff on September 27, 1893. Upon an affidavit of plaintiff's attorney, stating that the sheriff had levied upon a stock of merchandise belonging to defendant; that there were at plaintiff's place of business certain books of account belonging to defendant which deponent believed would show the whereabouts of the attached property and which deponent desired to inspect; and that deponent requested the sheriff to take said books into his possession, but the sheriff had refused, the following ex parte order was granted on September 28, 1893: "Ordered that the sheriff of the City and County of New York take into possession the books of account of the defendant under the attachment herein, and that the sheriff permit the plaintiff or his only authorized agent forthwith to examine such books at such place as may be convenient." tached and all evidence of the defendant's title to the real property attached, which he must safely keep to be disposed of as prescribed in this title." A corresponding provision was contained in the Revised Statutes (2 R. S. 3. § 7). In Brooke 7. Foster, 20 Abb. N. C. 200, it was held that by the above provision of the Code of Civil Procedure, it was intended that the books of the debtor should be subject to the examination not only of the sheriff, but of the plaintiff, for the purpose of discovering what, if any, amounts are due and what, if any, claims exist against the property attached; following Bleier v. Davidson, 20 Abb. N. C. 207 n, and disapproving Gordon v. Sabey, 10 Weekly Dig. 33. In Gordon v. Sabey (above) it was held that the sheriff would be stayed from permitting any one except defendant from examining books and papers taken under attachment and from examining them himself except for the purpose of strictly executing the attachment until further order of the court. In Hergman v. Dettlebach, 11 How. Pr. 47, it was held upon Krooks v. L. & C. Wise Co. In support of the motion to vacate such order, the affidavit of the deputy sheriff stated that he had seized certain merchandise belonging to defendant and also defendant's safe, in which deponent was informed and believed the books of account of defendant were contained; that deponent did not have the combination of said safe and was unable to open it, and had not yet attempted to open. the same. John H. V. Arnold, for the motion. Blumenstiel & Hirsch, opposed. PATTERSON, J.-The ex parte order granted on September 28th should be modified by striking out the motion for the restoration of books and papers seized under an attachment, that letters and correspondence were not authorized by 2 R. S. 3, § 7, to be taken by such process; and that it was grossly irregular for the deputy sheriff to examine or copy books of account and vouchers seized, and that he would be directed to keep such books and vouchers under lock and key and to allow no one to examine them save the defendants, except under special order of the court to be made on notice to the defendants. In United States v. Graff, 67 Barb. 304 ; mem. of S. C., 4 Hun, 634, it was held that the sheriff might properly be directed under an attachment to open a safe and the box in a trust company in order to levy an attachment upon defendant's property contained therein; and that it was within the discretion of the court to direct the exclusion of the counsel and agents of each party at the time of such opening. As to the latter direction the court say: "Without it the obligation would rest upon the officer to prevent the process he was required to execute from being converted into an instrument of investigation and discovery of the debtor's private papers. Such a use of it would be an abuse requiring the punishment of the officer permitting it to be done under color of process delivered for an entirely different and lawful purpose." By Code Civ. Pro. § 655, the sheriff may in aid of an attachment maintain an action against the debtor or other person to compel discovery of anything in action or other property belonging to the attachment debtor. Moritz v. Kaliske. direction to the sheriff to take into his possession the books of account. The law prescribes what the sheriff must do, and he must act or refuse to act at his peril. The order, as it stands, might well be construed as a direction from the court to break open safes and destroy property. A new order may be entered simply directing the sheriff to allow the plaintiffs to examine any books in his possession so far as may be necessary to discover property upon which the attachment may be levied. Settle order on notice. Under the above opinion the following order was entered: "Ordered that the order dated September 28, 1893, be and the same hereby is vacated; but it is further ordered, that the sheriff of the City and County of New York permit the plaintiff herein forthwith to examine any books which he now has or may hereafter get into his possession under the attachment herein so far as may be necessary to discover property upon which the attachment herein may be levied." MORITZ v. KALISKE. N. Y. Supreme Court, Special Term, First District; October, 1893. Creditor's suit.] An attaching creditor, before he has recovered judgment, may maintain an action in aid of his attachment, where the debtor has fraudulently disposed of his property; and in such action may enjoin the removal of the property from the jurisdiction of the court, when danger of such removal is shown.* Following People ex. rel. Cauffman v. Van Buren, 136 N. Y. 252. * For note on creditor's suit on attachment before judgment, see 23 Abb. N. C. 9. VOL. XXXI.—4 |