Kirby v. Sisson
New York Supreme Court
This cause was noticed for trial at the Essex circuit, in 1827, and was put off by the defendant for want of testimony, on payment of costs. The trial went off, the costs were taxed, but not paid, and a motion is now made for a rule of this court, requiring the defendant to pay the costs.
1Opinion of the Court
By the Court,
Woodworth, J.
This motion is opposed, because it is said the plaintiff ought to have sought his remedy in a different mode : that he ought to have insisted on immediate payment or proceeded in the trial; to have awaited the event of the suit, and taxed the costs in the general bill, or served the defendant with a copy of the rule at nisi prius, and a copy of the taxed bill, and on demand and nonpayment, to have applied for an attachment in the first instance. The two first courses undoubtedly might have been pursued; so, also, the latter might have been adopted, if a rule had been…
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