Briggs v. Allen
Court for the Trial of Impeachments and Correction of Errors
Costs. The action was for a libel upon Briggs, imputing to him various instances of misconduct, and, among others, malpractice as physician and surgeon for the Auburn State Prison, in the case of one Van Eck, a prisoner. The declaration contained five counts, the third of which related exclusively to the charge of mal-praetice. Most of the remaining counts related to that charge also, but connected it with others, sufficient in themselves to sustain the action.
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Costs. The action was for a libel upon Briggs, imputing to him various instances of misconduct, and, among others, malpractice as physician and surgeon for the Auburn State Prison, in the case of one Van Eck, a prisoner. The declaration contained five counts, the third of which related exclusively to the charge of mal-praetice. Most of the remaining counts related to that charge also, but connected it with others, sufficient in themselves to sustain the action. The defendants pleaded the general issue, and gave notice that they would prove the truth of what was alleged in the libel respecting…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
The case is not within the statute. (2 R. S. 512, § 27, subd. 2, 2d ed.) The provision contemplates a verdict for the defendant on the separate count before he is entitled to costs against the plaintiff. Independently of this section, the only consequence of a nolle prosequi *540as to one count or part of a count in a declaration^ is to deprive the plaintiff of costs upon the matters thus discontinued, (2 Tidd, 888 ; 2 Arch. 281; Hubbard v. Biggs, 16 East, 129.)
Motion denied, (a)
See The People v. Feeter, (12 Wend. 480;) Willis v. Bailey, &c. (19 Johns. Rep. 268.)
2Cases cited1 opinion
- People v. FeeterNew York Supreme Court · 1834