Drew v. Comstock
New York Supreme Court
This cause was regularly commenced and at issue prior to January, 1859, and was noticed for trial for the January circuit by both the plaintiff and defendant.
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This cause was regularly commenced and at issue prior to January, 1859, and was noticed for trial for the January circuit by both the plaintiff and defendant. On Saturday before the commencement of the circuit the plaintiff served the defendant with a notice of discontinuance of the cause and tendered the costs, which was refused on the ground that it was insufficient in amount, inasmuch as it did not allow the sum of $10 circuit fee, but it was agreed that the cause should be discontinued and the costs of the defendant taxed by the clerk. Upon taxation, the following facts were agreed upon…
1Opinion of the Court
Davis, Justice.
It is assumed by the facts presented that the case was regularly discontinued on Saturday before the circuit, and that costs were paid or tendered. The sole question i., as to the amount plaintiff was bound to pay on Saturday at the time of discontinuing. The circuit had not then commenced, and I am of opinion that the right to the circuit fee of $10 had, therefore, not attached.
The cause was not necessarily on the calendar, for, had the facts appeared to the clerk, it would have been stricken off before the circuit commenced ; and neither of the other conditions of the right…
2Cited by1 opinion
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