Booth v. Smith
New York Supreme Court
Motion for re-taxation of costs. The plaintiff declared in assumpsit. The first count was on a promissory note for $400, (lie second on a note for $30, and then followed the common money counts. The defendant pleaded, 1. The general issue; 2. Payment; and 3. Accord and satisfaction to tlie first count. To the last, plea, the plaintiff demurred, and the defendant joined.
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Motion for re-taxation of costs. The plaintiff declared in assumpsit. The first count was on a promissory note for $400, (lie second on a note for $30, and then followed the common money counts. The defendant pleaded, 1. The general issue; 2. Payment; and 3. Accord and satisfaction to tlie first count. To the last, plea, the plaintiff demurred, and the defendant joined. After the issues of law and fact were joined, the plaintiff noticed the cause for trial tani quam at the Orange April circuit in 1829, and look a general verdict upon his whole declaration. In May, 1829, the demurrer was…
1Opinion of the Court
By the Court,
Savage, Ch. J.
The plaintiff is not entitled to the costs of the circuit in 1829. He went to trial at his peril before the demurrer was decided, that is, at the peril of losing his verdict and the costs of (he circuit if the demurrer should happen to be decided against him. 1 Dunlap’s Pr. 521. 2 Sound. 300 a. A general rule applicable to all questions of costs is that the party in the wrong pays costs. The plaintiff was wrong to try his cause before the determina*109tian of (lie demurrer, and has incurred the penally of so doing. When (here are belli issues of law and issues of fact…
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