Smith v. White
New York Supreme Court
On error from the supreme court, where the judgment of the recorder’s court of the city of Buffalo was reversed. For a statement of the facts, together with- the opinion of the supreme court, see 4 Hill, 166 et seq. The case was argued here by
1Opinion of the Court
Lott, Senator.
The principal question in this cause is, whether the rule for discontinuing the first suit Was effectual without paying the costs of the defendants, who had previously retained an attorney, but of which no notice had been given to the plaintiffs.
The general rule is conceded to be, that a discontinuance without paying the costs is a nullity; but it is insisted that, by our statute regulating costs, no costs are allowable until after an actual appearance.
It is undoubtedly true that no judgment for costs can be given against the plaintiff, in favor of the defendant, before he has…
2Cases cited3 opinions
- M'Kenster v. Van ZandtNew York Supreme Court · 1828
- Robinson v. TaylorNew York Supreme Court · 1834
- James v. DelevanNew York Supreme Court · 1832