Tillspaugh agt. Dick and others. SUPREME COURT. TILLSPAUGH agt. DICK AND OTHERS. The dismissal of a complaint, on motion at a special term, for want of prosecution, is a judgment in the action in favor of the defendant. In such case defendant is entitled to $5 for proceedings before trial, and $10 may be allowed on the motion. But defendant is not entitled to $7 for subsequent proceedings, nor to a trial fee on the dismissal of the complaint. The clerk in such case is not entitled to a trial fee of $1, nor to any charge for entering the order, but may charge 50 cents for entering judgment. Albany Special Term, March, 1853. This was a motion for readjustment of costs. The complaint was dismissed" with costs," as to defendant Dick, at the last December special term, for the reason that the defendant had not brought the action to trial according to the course and practice of the court. The following costs were allowed on adjustment Costs of proceedings before trial,. ......... Subsequent proceedings before trial,... $5.00 7.00 November Cicrcuit, Schoharie co., cause on calendar,-- 10.00 Clerk's fees on motion to dismisss complaint, Clerk for certified copy order, two folios, . entering order, two folios, judgment,. 50 commissioner's fees for taking four affidavits,. 57 The cause had never been noticed for trial at the circuit by the plaintiff, or by the defendant Dick. It had once been noticed and put on the calendar by another defendant as to whom the complaint had been dismissed. H. SMITH, for Plaintiff. J. H. REYNOLDS, for Defendant PARKER, Justice.-The dismissal of the complaint was a judg ment in favor of the defendant and entitled him to recover whatever items of costs are given by the Code for services ren VOL. VIII. 5 Tillspaugh agt. Dick and others. dered. The first item of $5, for proceedings before notice of trial was properly allowed. The charge of $7, was improperly · allowed. That is only chargeable for services rendered after notice of trial and before trial, and as to this defendant, the cause had never been noticed for trial. For the same reason the circuit fee of $10 was not chargeable. The cause had been put on the calendar on the notice of another defendant. It was never on the calendar as between these parties. The only objection to the allowance of the charge of $10 on the motion to dismiss the complaint, is that the amount of costs is not specified in the rule dismissing the complaint. But the omission was undoubtedly clerical, as the order was granted "with costs." I shall, therefore, allow an amendment by inserting the words" ten dollars," so that it will read "with ten dollars costs." It was claimed that $12 should have been allowed as a trial fee on the dismissal of the complaint. But there was no trial. A trial is the judicial examination of the issues between the parties (Code, § 252). Here was no examination whatever of the issues, but the bill was dismissed merely because the plaintiff had neglected to bring the issues to trial. It is otherwise where the plaintiff applies for judgment on the ground of the frivolousness of a demurrer, answer or reply (Code, §247; 7 How. Pr. R. 396). In the latter case, there is necessarily a judicial examination of the issues. There being no trial, the clerk was not entitled to the charge of $1, nor to any charge for entering the order. But he had a right to charge for the copy of the order at five cents per folio, and fifty cents for entering judgment. There must be a readjustment of the costs according to the directions above given, neither party to have costs of this motion. New York Life Insurance and Trust Co. agt. Rand and others SUPREME COURT. NEW YORK LIFE INSURANCE AND TRUST Co. agt. RAnd and others. After a judgment of foreclosure, directing that the purchaser be let into possession, and a sale of the premises, the purchaser on proof that he has exhibited the sheriff's deed and the order confirming the sale, to the party in possession, and demanded the possession of the premises, is entitled ex parte to an order for a writ of assistance. No notice of the application therefor is necessary. A grantee of the purchaser is entitled to the same remedy, on the further proof that the deed from the purchaser to him has also been exhibited to the party in possession. An equitable claim by judgment creditors against the tenant in possession, and affecting the premises, can not be heard upon a motion for a writ of assistance or motion to vacate such writ. Monroe Special Term, January 1853. This action was instituted in August 1849, to foreclose a mortgage executed by the defendant Legg to the plaintiffs upon a dwelling house and about six acres of land situated in the fifth ward of the city of Rochester. A judgment of foreclosure in the usual form was entered some time prior to the 13th day of May 1850. None of the defendants appeared in the action. The defendant Frost was in the actual occupation of the mortgaged premises at the time of the commencement of the action, and had continued so in possession until after the order for a writ of assistance was granted as herein after stated. The premises were sold on the 13th day of May 1850, by the sheriff of Monroe county, by virtue of the judgment of foreclosure, and bid off on said sale by Henry S. Potter, for $5825; and the sheriff thereupon conveyed the premises to Potter, by deed bearing date the day last mentioned; which, after being duly acknowledged, was recorded in the office of the clerk of Monroe county on the 8th day of July 1852. The sheriff's report of sale was duly filed with said clerk on the 14th day of May 1850, and on the 9th day of October 1852, an order was duly entered for the confirmation of the report. Potter conveyed the premises to the defendant Rand, by deed bearing date June 14th 1852, which, after being duly acknowledged, was recorded in the office of said clerk, July 8th 1852. New York Life Insurance and Trust Co. agt. Rand and others. On the 26th October 1852, Rand exhibited to Frost, upon the said mortgaged premises, the said two deeds and a certified copy of the said order of confirmation, and requested him to deliver up possession of said premises to him, the said Rand, which he refused to do. Upon an affidavit of the foregoing facts by Rand, an order was granted ex parte, by Mr. Justice SELDEN, on the 3d day of November 1852, for a writ of assistance; which writ was accordingly issued and put into the hands of the sheriff of Monroe county, who executed the same soon afterwards, by putting said Frost out of possession, and delivering possession of the premises to Rand. A motion is now made on behalf of said Frost, and also of Henry R. Selden and Nathan F. Graves, to vacate the order for the writ of assistance, and to set aside the writ issued in pursuance thereof. Mr. H. R. Selden is a brother of Mr. Justice SELDEN, and claims an interest in the mortgaged premises, as a judgment creditor of Frost, and Graves, as a receiver appointed by Mr. Justice PRATT in a proceeding before him under the Code, in aid of execution, instituted by said H. R. Selden against Frost. H. R. Selden and Graves have commenced an action against Rand and Frost, claiming among other things, that some time in 1847, one Noble was nominally seized of the mortgaged premises, subject to the plaintiff's mortgage, but in reality, under a fraudulent secret trust for the benefit of Frost, and for the purpose of defrauding Frost's creditors. That subsequently, the title of said premises passed from Noble to Rand, under an understanding between Frost, Noble and Rand, that Rand should hold the same in secret trust for Frost. That Rand was put in funds belonging to Frost and through his instrumentality, sufficient to pay off and discharge the plaintiffs' mortgage, and for that purpose. That Rand, in violation of his agreement with Frost, suffered the mortgage to be foreclosed and the premises sold and bid off by Potter, and for his, Rand's benefit; and demanding judgment that Rand account for the property which went into his hands as aforesaid, and that the same be applied to the payment of the judgments belonging to said H. R. Selden. It was claimed that Rand had notice of the claims of Selden as above set forth, by New York Life Insurance and Trust Co. agt Rand and others. the service of the summons and complaint in the action of Selden and Graves against Rand and Frost. JOHN N. POMEROY, for the Motion. S. MATHEWS, Opposed. WELLES, Justice.-This motion is founded upon the following grounds: 1. That Frost, H. R. Selden and Graves should have had notice of the motion for the writ of assistance. 2. That Judge SELDEN had no jurisdiction to make the order for the writ, by reason of his consanguinity with H. R. Selden. 3. That Rand, not being the purchaser at the sheriff's sale, was not entitled to the writ of assistance; and 4. If notice had been given, and the judge had jurisdiction, that the writ of assistance should not have been ordered until the equities of H. R. Selden had been determined As to the first gronud: The English practice of invoking the assistance of the court in aid of a purchaser under a decree of foreclosure, and in other cases where the effect of the decree is to entitle a person to be put in possession of real estate, seems to be substantially as follows: To procure a common order on the defendant, requiring him to deliver possession, which was served upon him accompanied with a demand of possession, with sometimes a formal writ of execution of the order for possession. An attachment then issued for disobeying the order, but that was only matter of form, and was not to be executed. The next step was an order for an injunction against the tenant commanding him to deliver possession, which issued of course, on affidavit of the previous steps; and then, on affidavit of service of the injunction, and refusal, a writ of assistance to the sheriff, to put the party in possession, issued of course on motion, without notice (Dove vs. Dove 1 Bro. Ch. R. 375; Perkins ed. 330; S. C., 2 Dickins R. 617; Huguenin vs. Basely, 15 Ves. 180; Kershaw vs. Thompson, 4 Johns. Ch. R. 609, 614, 615; Valentine vs. Teller, 1 Hopk. R. 422). In the case cited of Kershaw vs. Thompson, Chancellor KENT held the attachment and execution useless, and that they might be |