Mullin v. Kelly
New York Supreme Court
Where Plaintiff moved for a reference in an action of assumpsit, his bill of particulars containing four items, including a promissory note—and after motion papers served, Defendant’s attorneys served Plaintiff's attorney with a stipulation agreeing to admit Plaintiff’s cause of action as to all the items, except the execution and delivery of the promissory note; and to strike out Defendant’s notice of set-off, served with the plea of general issue; held, that the…
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Where Plaintiff moved for a reference in an action of assumpsit, his bill of particulars containing four items, including a promissory note—and after motion papers served, Defendant’s attorneys served Plaintiff's attorney with a stipulation agreeing to admit Plaintiff’s cause of action as to all the items, except the execution and delivery of the promissory note; and to strike out Defendant’s notice of set-off, served with the plea of general issue; held, that the stipulation was sufficient to preclude the Plaintiff a reference, without costs of the motion; costs would have been given…
1Opinion of the Court
Jewett, Justice.
Denied the motion without costs, on the ground that the Defendant’s attorneys had stipulated to admitthe Plaintiff’s cause of action as to all items, except the execution and delivery of the promissory note declared on, and to strike out Defendant’s notice of set-off. Had the Defendant’s stipulation been served or offered before the motion papers were served, the motion would have been denied with costs.
2Cited by1 opinion
- Dodge v. WaterburyNew York Supreme Court · 1828