Henderson v. Jackson
The Superior Court of New York City
Appeal from an order made at Special Term, setting aside a precept issued by plaintiff to collect the costs awarded by an order of this court made at General Term. A demurrer by the defendant to the complaint was overruled at Special Term, and judgment ordered for plaintiff, with leave to defendant to answer over. From this order the defendant appealed, under section 349 of the Code, to the General Term, and the order was affirmed with costs of the appeal.
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Appeal from an order made at Special Term, setting aside a precept issued by plaintiff to collect the costs awarded by an order of this court made at General Term. A demurrer by the defendant to the complaint was overruled at Special Term, and judgment ordered for plaintiff, with leave to defendant to answer over. From this order the defendant appealed, under section 349 of the Code, to the General Term, and the order was affirmed with costs of the appeal. An adjustment of costs was had, and a precept issued to collect the same. On defendant’s motion the precept was set aside at Special Term,…
1Opinion of the Court
By the Court:
Freedman, J.
I am inclined to think that plaintiff had a right to issue a precept for the costs of the appeal only. The rule laid down in Mora v. Sun Mutual Insurance Company (13 Abb., 304; 22 How., 60), and Palmer v. Smedley (13 Abb., 185), in re*604lation to costs of demurrer, does not apply to the costs on appeal from an order overruling a demurrer. It appears, however, that on the motion to set aside the precept there was a conflict of evidence as to the contents and terms of the precept. The affidavit of defendant’s attorney states distinctly that the costs, both at Special and…
2Cited by2 opinions
- Fitzgerald v. PaynNew York Supreme Court · 1894
- Tyler v. HildrethNew York Supreme Court · 1894