Van Woert v. Ackley
New York Supreme Court
Appeal from special term, Otsego county. Action by-Andrew Van Woert against Willis Ackley. In the Otsego circuit of January, 1887, the plaintiff had a verdict for $155. A motion for a new trial on the judge’s minutes was made by the defendant, and granted by H. Boardmán Smith, J., who presided at the trial; and he based his order granting such trial upon an error committed in the charge; and the order allowed “ $10 costs to abide the event. ” The plaintiff took an appeal…
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Appeal from special term, Otsego county. Action by-Andrew Van Woert against Willis Ackley. In the Otsego circuit of January, 1887, the plaintiff had a verdict for $155. A motion for a new trial on the judge’s minutes was made by the defendant, and granted by H. Boardmán Smith, J., who presided at the trial; and he based his order granting such trial upon an error committed in the charge; and the order allowed “ $10 costs to abide the event. ” The plaintiff took an appeal from that order to the general term, and, after a consideration of the appeal, the general term, on the 13th of November,…
1Opinion of the CourtHardin, P. J.
Inasmuch as the $10 costs of motion in the order of January, 1887, were allotted to abide the event, the non-payment of them by the plaintiff does not permit the defendant to avail of the provision in section 779 of the Code of Civil Procedure in respect to a stay of proceedings. Upon the questions made as to the non-payment of the costs of the appeal included in the judgment of affirmance of the order granting a new trial, which costs amount to $89.03, the cases of Eisenlord v. Clum, 5 N. Y. Supp. 512, and Verplanck v. Kendall, 47 N. Y. Super. Ct. 513, are in point, and adverse to the…
2Cases cited1 opinion
- Eisenlord v. ClumNew York Supreme Court · 1889
3Cited by1 opinion
- Cohen v. KrulewitchAppellate Division of the Supreme Court of the State of New York · 1903