Mora v. Sun Mutual Insurance
The Superior Court of New York City
Motion to set aside a precept issued to collect costs of proceedings upon demurrers interposed to part of an answer. This suit was upon a policy of insurance on merchandise, issued by the defendants. The defendants set up in the first three heads of their answer various matters of defence; and then, in the fourth, fifth, and sixth heads of the answer, set forth, by way of separate counter-claims, three promissory notes made by th.e plaintiffs and held by the defendants.
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Motion to set aside a precept issued to collect costs of proceedings upon demurrers interposed to part of an answer. This suit was upon a policy of insurance on merchandise, issued by the defendants. The defendants set up in the first three heads of their answer various matters of defence; and then, in the fourth, fifth, and sixth heads of the answer, set forth, by way of separate counter-claims, three promissory notes made by th.e plaintiffs and held by the defendants. The plaintiffs demurred to the fourth, fifth, and sixth defences. The demurrers were argued at special term, and by the…
1Opinion of the Court
Bosworth, Ch. J.
—The authority to issue the precept in this case must be found in the Laws of 1840, 333, ch. 386, § 15, and the Laws of 1847, 491, ch. 390, or else it must be set aside as unauthorized and illegal. No other statute is cited as conferring authority to issue it.
Section 15 of chapter 386 of the Laws of 1840, enacts that “all orders awarding costs upon granting or denying special motions shall specify the amount of such costs; and where the order for the payment of costs, or any sum of money upon special motion, is not conditional," a precept to enforce payment of such costs or…
2Cases cited2 opinions
- Masters v. BarnardNew York Supreme Court · 1851
- Drummond v. HussonThe Superior Court of New York City · 1852
3Cited by1 opinion
- Cassavoy v. PattisonAppellate Division of the Supreme Court of the State of New York · 1905