Majority
p. 244PILGER a. GORE. New York Superior Court; Special Term, February, 1861.
Headnote
Discontinuance.—Costs.Where, after defendant has appeared by attorney, the plaintiff obtains a consent from the defendant in person, for a discontinuance, and fails to notify the attorney, or to enter an order for discontinuance, a default taken by such attorney will-not be set aside except upon payment of costs.
Motion to open default, and for leave to enter discontinuance.
This was an action for slander, which was brought to an issue, and noticed for trial by the defendant’s attorneys. On the 11th of February the cause was reached, and the plaintiff not appearing, the action was, on motion, dismissed with costs.
The plaintiff now moved to open the default, and for leave to discontinue without costs, upon a consent for such discontinuance, signed by the plaintiff’s attorney and the defendant in person, dated March 24th, 1860.
The defendant’s attorney, in opposition, insisted on his right to the costs.
—The plaintiff’s attorney seems to have obtained the defendant’s consent to discontinue without the knowledge of the attorney, and allowed the latter to go on noticing the cause and taking the default of the plaintiff without applying to the court to enter an order of discontinuance. Although the default is excused, the attorney is entitled, to the costs he has been put to by the plaintiff’s neglect. .The default may therefore be opened, and an order for discontinuance entered, upon the plaintiff’s paying the cost of the term, being ten dollars, with any disbursements by the defendant’s attorneys, and the costs of opposing the motion fixed at ten dollars.