Mitchell v. Westervelt
New York Supreme Court
Motion to set aside an execution and two processes in the nature of a fi. fa., and also for retaxation of costs. This cause was tried and verdict taken for plaintiff at the Montgomery June circuit, 1851, defendant not appearing, and costs were adjusted on notice to defendant’s attorney at $58*22, and judgment entered on the 20th day of June. An order to stay proceedings was obtained by defendant on the 18th of June, served by depositing in post office, &c. on the 20th.
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Motion to set aside an execution and two processes in the nature of a fi. fa., and also for retaxation of costs. This cause was tried and verdict taken for plaintiff at the Montgomery June circuit, 1851, defendant not appearing, and costs were adjusted on notice to defendant’s attorney at $58*22, and judgment entered on the 20th day of June. An order to stay proceedings was obtained by defendant on the 18th of June, served by depositing in post office, &c. on the 20th. Notice of motion to set aside the judgment was given for the July special term at Schenectady, but defendant not making it,…
1Opinion of the Court
Hand, Justice.
The plaintiff was entitled to the charge of $7. This was intended as compensation of a notice of trial, issuing subpoenas, &c., preparatory to trial, and is part of the costs of circuit {Code, § 307). Fifteen dollars is the allowance for trying the cause, and not for the preparation (5 How. Pr. R. 336; 4 id. 304). The same pleadings, perhaps, may be used on a second trial, but that does not alter the case. Nor do the provisions of the Code, giving costs where a cause is not reached, or is postponed, apply, when there has been a trial {Code, §307, 314).
Travel of the witness was…
2Cases cited2 opinions
- Lorton v. SeamanNew York Court of Chancery · 1842
- Hoadley v. CuylerNew York Supreme Court · 1833
3Cited by3 opinions
- Smith v. HuttonNew York Supreme Court · 1909
- Fleischman v. YagelNew York Supreme Court · 1896
- Smith v. HuttonAppellate Division of the Supreme Court of the State of New York · 1909