Osborne v. Lawrence
New York Supreme Court
The declaration in this case contained three counts upon a special contract, and also the common money counts. The defendant demurred, specially to the counts upon the special contract, and pleaded to issue upon the other counts. Before the determination of the demurrers, the plaintiff carried down his cause to trial upon the issues of fací and obtained a verdict, waiving the right to assess contingent damages.
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The declaration in this case contained three counts upon a special contract, and also the common money counts. The defendant demurred, specially to the counts upon the special contract, and pleaded to issue upon the other counts. Before the determination of the demurrers, the plaintiff carried down his cause to trial upon the issues of fací and obtained a verdict, waiving the right to assess contingent damages. On the argument of the demurrers, judgment was given for the defendant for defects in the form of the counts demurred to, and permission granted to the plaintiff to amend. The…
1Opinion of the Court
By the Court,
Savage, Ch. J.
Previous to the late revision of the statutes the rale was settled that where there were is*446sues of fact and of law joined upon separate counts in the pia;ndff’s declaration, if the plaintiff prevailed upon the whole record, he recovered costs upon the issues found in his favor, and did not pay costs upon the issues of law found against t */ t f? him. 1 Wendell, 277. 2 id. 632. Where the demurrer goes to the whole cause of action, and judgment be given for the defendant thereon, the defendant should liáve costs, for the plaintiff should not try his issue after…
2Cases cited3 opinions
- Wright v. WilliamsNew York Supreme Court · 1829
- Booth v. SmithNew York Supreme Court · 1830
- Williams v. WrightNew York Supreme Court · 1828
3Cited by2 opinions
- Dresser v. WickesNew York Supreme Court · 1856
- Potter v. Van VrankenNew York Court of Appeals · 1867