Harden v. Hardick
New York Supreme Court
Re-taxation of costs. The plaintiffs entered a rule to discontinue on payment of costs, and gave notice thereof to the defendant’s attorney, offering to pay the costs when taxed. The taxing officer allowed the defendant the usual costs for entering up judgment. A motion was now made, in behalf of the plaintiffs, for re-taxation.
1Opinion of the Court
By the Court,
Nelson, Ch. J.
The defendant is only entitled to such costs as had accrued at the time notice of discontinuance was received. If not paid on taxation, he may proceed in the cause the same as if no rule to discontinue were ever entered; (McKenster v. Van Zandt, 1 Wend. 13; Grah. Prac. 604, 2d ed.;) for in such case the rule may be treated as a nullity. (Id. ibid. Leonard v. Slaughter, 10 John. R. 367; Robinson v. Taylor, 12 Wend. 191.)
Motion granted.
2Cases cited2 opinions
- M'Kenster v. Van ZandtNew York Supreme Court · 1828
- Robinson v. TaylorNew York Supreme Court · 1834