Bartow v. Cleveland
New York Supreme Court
Appeal from judgment at special term. In a foreclosiu’e action in which the plaintiff in the present action was the plaintiff, an,d the Same person defendant, the parties, on settling by payment before judgment, disagreed as to whether the defendant was bound to pay an allowance.
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Appeal from judgment at special term. In a foreclosiu’e action in which the plaintiff in the present action was the plaintiff, an,d the Same person defendant, the parties, on settling by payment before judgment, disagreed as to whether the defendant was bound to pay an allowance. The whole allowance claimed was $42.20. The plaintiff consented to reduce it to $27.16. The note in suit in the present action was thereupon given by the defendant in settlement, and included as a part of its amount this sum of $27.16.- The defendant now resisted the payment of the note as to this sum, contending…
1Opinion of the Court
By the Court.—Marvin, J.
—The question here presented is not without its embarrassments. The action belongs 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 Revised Statutes (2 Rev. Stats., 553); such right is confined to actions at law (9 How. Pr. R., 398 ; Thurston a. Marsh, 5 Abbotts’ Pr. R., 389; S. C., 14 How. Pr. R., 572); nor- is it a case where the plaintiff had a right to the additional allowances, as provided in section 308 of the Code, as…
2Cases cited1 opinion
- Gallagher v. EganThe Superior Court of New York City · 1850