McCann v. Bradley
New York Supreme Court
Present, Mitchell, Clerke and Cowles, Justices. This action was originally commenced in November, 1853, against James Diamond and John Haggerty, as partners, to recover for work and labor. After the service of the summons and complaint on Haggerty, and before the same was served upon Diamond, Diamond died. Haggerty put in an answer making an issue.
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Present, Mitchell, Clerke and Cowles, Justices. This action was originally commenced in November, 1853, against James Diamond and John Haggerty, as partners, to recover for work and labor. After the service of the summons and complaint on Haggerty, and before the same was served upon Diamond, Diamond died. Haggerty put in an answer making an issue. An order was subsequently entered continuing the action against Haggerty as surviving partner of Diamond, deceased, and the cause in this situation was referred to Wm. H. Elting, referee, to hear and determine. During the trial before the referee,…
1Opinion of the Court
By the court—Cowles, Justice.
What costs a party is entitled to, depends upon the state of facts and the law, as they exist at the date of the judgment. They do not vest from time to time as the suit proceeds.
Therefore if the law pendente lite, alters or amends the law as to costs, the state of the case at the date of the judgment controls
Here the suit abated unless it was revived, and without asking the administrators here to refer, the plaintiff revived the suit and went on. Besides, he claimed more than he was entitled to, so plaintiff cannot recover his costs.
2Cited by2 opinions
- Tindal v. JonesNew York Supreme Court · 1860
- Mitchell v. MountNew York Court of Common Pleas · 1863