Weigan v. Held
New York Court of Common Pleas
Motion by defendant, for judgment, for non-prosecution of the action. In this action the plaintiff’s attorney drew and served a summons for relief, giving the plaintiff’s name as Weigan. He was afterwards informed by his client that his real name was Eischer. He thereupon procured an order of discontinuance, granted October 9, 1856, and served on the evening of the same day; but without tender of costs.
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Motion by defendant, for judgment, for non-prosecution of the action. In this action the plaintiff’s attorney drew and served a summons for relief, giving the plaintiff’s name as Weigan. He was afterwards informed by his client that his real name was Eischer. He thereupon procured an order of discontinuance, granted October 9, 1856, and served on the evening of the same day; but without tender of costs. At this time he had no knowledge that an attorney had been employed by defendant. On October 15 following, he was served with a notice of appearance and demand of copy complaint, by an…
1Opinion of the CourtBrady, J.
Under the old system, and prior to the decision in Smith v. White, (7 Hill, 520), it was well settled that the *463employment of an attorney prior to the rule of discontinuance entitled the defendant to costs, although the rule was entered before the defendant had in fact appeared. (Robinson v. Taylor, 12 Wend., 191; White v. Smith, 4 Hill. 166), and that a discontinuance under such circumstances could be treated by the defendant as a nullity, unless his costs were paid. The Oourt of Errors however reversed the judgment of the Supreme Court in White v. Smith, and overruled Robinson v. Taylor upon…
2Cases cited1 opinion
- Robinson v. TaylorNew York Supreme Court · 1834
3Cited by1 opinion
- Trow'S Printing & Book-Binding Co. v. New York Book-Binding Co.City of New York Municipal Court · 1888