Bartow v. Cleveland
New York Supreme Court
Action upon a promissory note. _ The action was tried by the court without a jury, and the facts were agreed upon and submitted by stipulation. A brief statement of facts will present the question.
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Action upon a promissory note. _ The action was tried by the court without a jury, and the facts were agreed upon and submitted by stipulation. A brief statement of facts will present the question. The plaintiff is an attorney of this court, and commenced an action in April, 1857, against the defendant to foreclose a mortgage, upon which there was due $760. The defendant appeared by an attorney, upon whom a copy of the complaint was served, and some time after that, the defendant called upon the plaintiff for the purpose of settling the action. The plaintiff made out the bill of costs,…
1Opinion of the Court
By the court—Marvin, Justice.
The question here presented is not without its embarrassments. The action belonged to that class of cases in which costs may be allowed or not, in the discretion of the court. (Code, 306.)
It is not a case in which the defendant had a right to make and plead a tender, under the Bevised Statutes, (2d Vol. 553 ;) such right is confined to actions at law; (9 How. 398 ; Thurston agt. Marsh, 14 How. 572;) nor is it a case where the plaintiff had a right to the additional allowances, as provided in § 308 of the Code, as no judgment had teen recovered. (Pratt agt. Conkey,…
2Cases cited2 opinions
- Veazie v. MoorSupreme Court of the United States · 1853
- United States v. D'AuterieveSupreme Court of the United States · 1854
3Cited by3 opinions
- Moore v. Le MaireAppellate Division of the Supreme Court of the State of New York · 1915
- Pennell v. WilsonThe Superior Court of New York City · 1867
- Pennell v. WilsonThe Superior Court of New York City · 1864