In re Lord's Estate

The taxation by the clerk ■sought to be set aside was upon notice to the •appellant, and the action of the clerk was affirmed upon an appeal from such taxation in De•cember, 1894. Upon the appellant claiming that he was not liable for the costs, a motion was made for resettlement of the general term order so as to designate the appellant by name as the party to pay the costs, which was denied on the ground that it was unnecessary, as the order required the payment of said costs and disbursements by the respondent, who in that proceeding was. the appellant here. The question of the taxation of these costs has therefore been twice presented,—once at the special term, and once at the general term; and this, seemingly, should have been an end of the matter. After the entry of judgment and the issuance of an execution, an order to examine the appellant in supplemental proceedings was granted. Thereupon a motion was made to set aside such order, upon the ground that the taxation originally made by the clerk was unauthorized, and the judgment founded thereon void. The motion was denied at the special term, and on appeal the order denying such motion was affirmed by this appellate division. Thereafter the appellant made this motion to set aside the taxation and the execution upon the ground that Cassidy v. McFarland, 139 N. Y. 201, 34 N. E. 893, sustains the proposition that no authority or power whatever was conferred upon the clerk to tax the disbursements, and that, therefore, the execution issued had no judicial determination upon which it could rest, and that under the authority of Kamp v. Kamp, 59 N. Y. 212, the appelant has the right at any time to assail the validity. of the judgment entered upon the clerk’s action. We do not intend to examine anew this question, it having been presented and the same authorities examined upon the former appeal, and we must regard the decision then made as an adjudication upon the precise question now presented. The order should be affirmed, with $10 costs and disbursements.