James v. Delevan
New York Supreme Court
Costs on discontiuance. After a rule for reference, the plaintiff entered a rule in the common rule book for discontinuance, with costs against the plaintiff, and served a notice of such rule on the defendant, who, after receiving the same, taxed his costs and demanded payment, and the plaintiff refusing to pay, the defendant noticed the cause for hearing before the referees; whereupon the plaintiff obtained an order staying the proceedings, and now asked for a rule making…
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Costs on discontiuance. After a rule for reference, the plaintiff entered a rule in the common rule book for discontinuance, with costs against the plaintiff, and served a notice of such rule on the defendant, who, after receiving the same, taxed his costs and demanded payment, and the plaintiff refusing to pay, the defendant noticed the cause for hearing before the referees; whereupon the plaintiff obtained an order staying the proceedings, and now asked for a rule making such order absolute, except that the defendant have leave to tax his costs and make up and file a record of…
1Opinion of the Court
By the Court,
Savage, Ch. J.
The proceedings of the defendant have been regular. The plaintiff cannot discontinue without payment of costs. This is conceded ; but how are the costs to be liquidated and paid ? The plaintiff contends that the defendant must make up a record of discontinuance, and tax his costs, and collect them as he would upon a judgment of non-pros or non-suit. On this subject I have not found any case in our own court. We have said that the discontinuance is not complete until the costs are paid, and that the rule without payment of costs, is a nullity. 1 Wendell, 13. Perhaps…
2Cases cited1 opinion
- M'Kenster v. Van ZandtNew York Supreme Court · 1828
3Cited by3 opinions
- Gillilan v. SprattNew York Court of Common Pleas · 1871
- Slocomb v. ThatcherCircuit Court of the 10th Circuit of Michigan · 1869
- Smith v. WhiteNew York Supreme Court · 1844