Landon v. Van Etten
New York Supreme Court
Action by Shepherd F. Knapp, receiver, for whom plaintiff Landon was afterwards substituted, against James Van Etten and others, on an undertaking given by defendants for costs on appeal from a judgment of foreclosure, and for use and occupation of the mortgaged premises pending the appeal. The undertaking also contained the provisions required in appeals-from judgments for the payment of money, but defendants claimed that such provisions had been inserted by mistake.
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Action by Shepherd F. Knapp, receiver, for whom plaintiff Landon was afterwards substituted, against James Van Etten and others, on an undertaking given by defendants for costs on appeal from a judgment of foreclosure, and for use and occupation of the mortgaged premises pending the appeal. The undertaking also contained the provisions required in appeals-from judgments for the payment of money, but defendants claimed that such provisions had been inserted by mistake. Plaintiff sought to recover on the undertaking, not only the costs of the appeal, and for use and occupation of the premises,…
1Opinion of the CourtBarrett, J.
There can be no doubt that the defendants are entitled to-costs. The offer expressly included interest on $1,500 from.March 30,1884, to the date of the service of the offer, August 9, 1889. Thus the sum actually offered, even without interest thereafter, considerably exceeded the-amount for which the verdict was directed. But I am constrained to deny an extra allowance upon the authority of Magnin v. Dinsmore, 47 How. Pr. 11. I cannot find any case questioning the rule there laid down, though it. *565certainly seems unjust that the party successful in the real controversy cannot have adequate…
2Cases cited1 opinion
- Magnin v. DinsmoreThe Superior Court of New York City · 1873