Hoyt v. Blain
New York Supreme Court
The plaintiffs, in June, 1830, obtained a verdict against the defendant for #30,51 in an action of assumpsit, the demands exhibited on the trial not being such as entitled the plaintiffs to costs. The defendant supposing that his costs would be a full set-off against the damages, and the plaintiffs being insolvent, suffered the matter to sleep.
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The plaintiffs, in June, 1830, obtained a verdict against the defendant for #30,51 in an action of assumpsit, the demands exhibited on the trial not being such as entitled the plaintiffs to costs. The defendant supposing that his costs would be a full set-off against the damages, and the plaintiffs being insolvent, suffered the matter to sleep. In the autumn of 1833, he was served with a scire facias quare executionem non; when, being advised that the plaintiffs would not be entitled to costs in the scire facias suit, he took no measures to defend the same, until January, 1834, when he was…
1Opinion of the Court
*189 By the Court,
Sutheíiland, J.
The sum recovered by the plaintiffs in the original action was not sufficient to entitle them to costs; the defendant was therefore entitled to judgment against the plaintiffs for his full costs in this court, 2 R. S. 615, § 16, the case not falling within any of the exceptions mentioned in § 8 and 9. The cause having been tried at the circuit, the defendant’s costs undoubtedly exceeded the plaintiff’s recovery, and nothing was due to them. In such a case there is to be but one record, which gives judgment to the plaintiff for the damages recovered, and for the…
2Cited by1 opinion
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