Zink v. Attenburg
New York Supreme Court
Action for assault and battery. The defendants joined in a general denial answer, and on the trial the plaintiffs obtained a verdict against the defendants other than Attenburg, as to him, the plaintiffs failed. He presented his costs for adjustment to the clerk, who refused to adjust them, the plaintiff objecting that Attenburg was not entitled to costs. Also, that he should first have obtained the order of the court allowing him costs.
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Action for assault and battery. The defendants joined in a general denial answer, and on the trial the plaintiffs obtained a verdict against the defendants other than Attenburg, as to him, the plaintiffs failed. He presented his costs for adjustment to the clerk, who refused to adjust them, the plaintiff objecting that Attenburg was not entitled to costs. Also, that he should first have obtained the order of the court allowing him costs. A motion was then made, at a special term, for an order directing the clerk to adjust the costs of Attenburg, and for such other or further order as to the…
1Opinion of the Court
By the court—Marvin, Justice.
At the time I granted the order at the special term, I was of the opinion that the second clause of section 306 of the Code had not been substantially changed or enlarged by the amendment of 1851, substituting the words, “in all actions where,” for the word “ when,” and that Attenburg was entitled to costs, of course, under section 305, the action being one in which, by section 304, the plaintiff would have been entitled to costs if he had succeeded. I have examined this question in another case presented on appeal, The Bank of Attica agt. Wolf and others (ante,…
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