Nellis v. Tucker
New York Supreme Court
Error to the Oneida common pleas. Tucker sued Nellis before a justice, and the only witness which he offered to prove the case on his part being rejected on the ground of interest, the justice decided that he should be nonsuited. The defendant said he did not wish to have costs awarded in his favor, but the plaintiff insisted that .the judgment should be with costs, in order that he might have the question reviewed, and so the justice decided.
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Error to the Oneida common pleas. Tucker sued Nellis before a justice, and the only witness which he offered to prove the case on his part being rejected on the ground of interest, the justice decided that he should be nonsuited. The defendant said he did not wish to have costs awarded in his favor, but the plaintiff insisted that .the judgment should be with costs, in order that he might have the question reviewed, and so the justice decided. Judgment was accordingly rendered against the -plaintiff for costs. On certiorari it was reversed by the common pleas, and the plaintiff brought error.
1Opinion of the Court
By the Court, McKissock, J.
The plaintiff in error insists that the defendant should be treated as he would have been if the judgment had been without costs—as it was his own fault that it was rendered against him in its present shape—and therefore that the court of common pleas should not have reversed the judgment. To establish that position he cites Monell v. Weller, (2 John. 8.) and Potter v. Smith, (14 id. 444.) In the first of those cases the judgment in the court below was without costs, and the court remarked, that though the plaintiff had been improperly nonsuited, still they could…
2Cases cited2 opinions
- Lovell v. EvertsonNew York Supreme Court · 1814
- Monnell v. WellerNew York Supreme Court · 1806
3Cited by1 opinion
- Countryman v. LighthillNew York Supreme Court · 1881