Seasongood v. New York Elevated R. R. Co.

copyist might have been, and this was done under an agreement made at the commencement of the trial, thatthe fees of the stenographer thus employed should be borne by the parties in equal proportions, each paying one half thereof. Although an extra copy was ordered by the referee, we see no reason why the costs should be taxed against the defendants. If the service was rendered on their order, it was still one fairly covered by the original agreement and was equally for the benefit of both litigants" (see also Newhall v. Appleton, 4 Law Bul. 5).

Adams v. N. Y. Lake Erie and Western (20 Abb. N. C. 180) was tried before LAWRENCE, J., and a jury, in the supreme court, first district, January, 1888, and the report of the case contains the following:

"In the absence of special agreement, all parties to an action are jointly liable to an unofficial stenographer employed to take the official records of proceedings before the referee and furnish parties with minutes of testimony" (see note to the case last cited).

Hasbrouck v. The Manhattan R. R. Co. (unreported) was brought in the court of common pleas and was tried before a referee, and the judgment was appealed from and affirmed at the general term of the Court. The same question which arises in these cases came up in that case. The clerk refused to tax the amount for stenographer's minutes, under the objection of counsel for defendants, and the plaintiff appealed from the taxation. The motion came on to be heard before Chief Justice DALY, and after a full argument of the question Judge DALY denied the motion, with costs, in the following opinion:

"The expense of procuring a copy of the stenographer's minutes in order to prepare amendments to a case on appeal has been allowed to a respondent upon taxation of his costs of the general term " (Stevens v. N. Y. El. R. R. Co., 31 St. Rep. 404; s. c.,18 Civ. Pro. R. 350; Sebley v. Nichols, 32 How. Pr. R. 182). "It has been

Macdonald v. Kieferdorf.

held, however, that it is only in the case of official stenographers that disbursements for their fees can be taxed, and that as to stenographers employed upon a reference, in the absence of a stipulation to that effect, their fees are not taxable as a disbursement" (Marx v. City of Buffalo, 87 N. Y. 184; Nugent v. Keenan, 53 Supr. Ct. R. 530). "The stenographer here was employed on a reference and there was no stipulation to tax his fees. Motion denied; $10 costs."

The case relied on by the respondent (Stevens v. N. Y. El. R. R. Co., supra) was tried before the court and is, therefore, inapplicable. In view of these adjudications the taxation by the clerk must be reversed and the item for stenographer's fees disallowed.

MACDONALD, APPELLANT, v. KIEFERDORF, KIRK et al., RESPONDENTS.

N. Y. COURT OF COMMON PLEAS, GENERAL TERM; MARCH, 1892.

S$ 23, 641.

Attachment-what objections to cannot be taken for first time on appeal -when should be vacated.

The objection that the moving papers of one applying as a junior attaching creditor for the vacation of a prior attachment did not show that any attachment has been obtained by him cannot first be taken on appeal from the order determining the motion, although, it seems, that if made on the motion it would have been fatal to the rights of the moving creditor to his right of making the application, unless the defect was supplied by an amendment then permitted by the court.

Macdonald v. Kieferdorf.

The objection that an irregularity for which an attachment is attacked is not specified with sufficient distinctness in the moving papers cannot be entertained for the first time on appeal. The omission to state in a warrant of attachment the ground upon which it is issued is not a mere irregularity which may be supplied by amendment, but is a defect which renders the warrant void.

A warrant of attachment which recites the ground therefor merely that "defendant has departed from the city and state of New York " does not state any of the grounds for an attachment specified in the Code of Civil Procedure and is void and properly vacated. First National Bank v. Bushwick (17 N. Y. Civ. Pro. 229) Worthington v. Dorsett (6 N. Y. St. Rep. 861, reversing s. c., Daily Reg., Oct. 1886) followed.

It seems that where the form of a mandate is prescribed by the Code it must be substantially followed, otherwise the paper will be jurisdictionally defective and void; but that where the substantial rights of the defendant have not been violated, nor the rights of third persons prejudiced, the defect may be disregarded or supplied by amendment; that where a paper purporting to be a mandate recites the necessary jurisdictional facts the same will not be set aside because of erroneous recitals therein, particularly if the defect is not pointed out in the notice of motion as the ground of vacating the attachment; and that sheriffs in an action against them to enforce an alleged liability cannot attack the form of the mandate placed in their hands for enforcement. (Decided May 2, 1892.)

Appeal by the plaintiff from an order of this court entered upon the motion of subsequent attaching creditors vacating a warrant of attachment herein.

On the first day of February, 1892, Nellie Macdonald, the plaintiff and appellant, procured a warrant of attachment against the property of Frederick F. Kieferdorf in this action, which was subsequently levied upon the property of the defendant. The warrant recited "that defendant has departed from the city and state of New York."

Subsequently Harford B. Kirk and others, composing the firm of H. B. Kirk & Co., the respondents-upon

Macdonald v. Kieferdorf.

an affidavit of their attorney alleging the granting of the said warrant of attachment in the above-entitled action on February 1, 1892, a copy of which he annexed to the moving papers, and also that in pursuance thereof the sheriff had made a levy on the stock and goods of the defendant; that on or about February 4, 1892, an action was commenced in this court, in which the respondents were plaintiffs, and the defendant herein, defendant; that on Februry 5, 1892, an attachment was granted in said last-mentioned action against the property of the defendant, upon the ground that defendant had departed from this state with intent to defraud his creditors or to avoid the service of a summons, and duly issued to the sheriff, who by virtue thereof attached the property of the defendant, and upon the sheriff's certificate that he had levied upon the property of the defendant by virtue of each of the aforesaid attachments-moved to vacate the attachment granted herein upon the ground that it fails to comply with sections 23 and 641 of the Code of Civil Procedure.

Upon the argument of the said motion, the appellant applied to the court "for leave to amend the said warrant of attachment by inserting therein a full statement of the grounds upon which the said warrant was granted, as required by section 641 of the Code of Civil Procedure," which application was denied, and the said motion was granted" upon the ground that the said warrant of attachment fails to comply with section 641 of the Code of Civil Procedure," and from the order entered thereon the plaintiff appeals.

Further facts are stated in the opinion.

S. F. Kneeland and Henry M. Heymann, for appellant.

Seth Sprague Terry, for respondent.

GIEGERICH, J.-The appellant seeks a reversal of the

Macdonald v. Kieferdorf.

order appealed from on the ground, among others, that the moving papers in this case do not show that any valid attachment had been obtained by the moving creditors, and that, therefore, the motion to vacate her attachment could not be entertained. Had such an objection been made in the court below, it would have been fatal to the right of the moving creditors to make such application (Tim v. Smith, 3 Civ. Pro. 347; aff'd 93 N. Y. 87; Williams v. Waddell, 5 Civ. Pro. 191; Bruen v. Gillet, 44 Hun, 298; Williams v. Cullen, 11 St. Rep. 283; Dayton v. The McElwee Mfg. Co., N. Y. Law Journal, Dec. 22, 1891), unless the defect pointed out was permitted to be supplied by amendment. But it would be manifestly unjust to permit such an objection to be raised for the first time on appeal, which the appellant had every opportunity to present in the court below, and which if made might have been met by strict legal proof of the subsequent lien (Tim v. Smith, supra); or if the court would not have permitted an amendment to supply such proof, it must have denied the motion without prejudice to a renewal of the application upon proper proofs and papers. Therefore, under the circumstances, the objection is not available on appeal in the first instance.

The appellant also insists that the particular irregularity is not specified in the moving papers. The order to show cause specifies with sufficient distinctness the grounds upon which the moving creditor moved the court to vacate the warrant of attachment herein; but conceding that the ground was not sufficiently pointed out, the record shows that this objection was not raised in the court below, where a full argument and hearing was had upon the merits; and under the authorities the objection cannot now be entertained for the first time (Livermore v. Bainbridge, 14 Abb. N. S. 227; Miller v. Kent, 10 Weekly Dig. 361; s. c. 59 How. 321.)

The appellant also insists that the omission of any of the requirements specified in section 641 of the Code