Perine v. Wiggins
New York Supreme Court
At chambers. Action by Mary E. Perine against Charles B. Hall as drawer, and Edwin B. Wiggins as indorser, of a draft. Defendant Wiggins alone answered, and issue was joined thereon. After the cause had been noticed for trial, the attorney for the answering defendant served a notice on plaintiff that he withdrew his answer.. Afterwards, on the day on which the cause was noticed for trial, defendants failed to appear, and an inquest was had against them.
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At chambers. Action by Mary E. Perine against Charles B. Hall as drawer, and Edwin B. Wiggins as indorser, of a draft. Defendant Wiggins alone answered, and issue was joined thereon. After the cause had been noticed for trial, the attorney for the answering defendant served a notice on plaintiff that he withdrew his answer.. Afterwards, on the day on which the cause was noticed for trial, defendants failed to appear, and an inquest was had against them. The clerk struck out of plaintiff’s bill of costs the items of $30 for the trial fee on an issue of fact, and $1 for the clerk’s trial fee.…
1Opinion of the CourtAndrews, J.
The notice cannot be regarded as sufficient offer of judgment under section 738 of the Code, for the reason that no affidavit was annexed, as required by section 740. Riggs v. Waydell, 78 N. Y. 586. Besides, it was of no avail as such an offer, because not made more than 10 days before the trial. Herman v. Lyons, 10 Hun, 111. There does not appear to be any provision of the Code authorizing the withdrawal of an answer except in connection with an offer of judgment. Under section 740 I think the trial fee of $30 and the clerk’s trial fee of $1 should have been allowed by the clerk. Motion…
2Cases cited1 opinion
- Riggs v. . WaydellNew York Court of Appeals · 1879