Jacobs v. Hooker — 1 Barb. 71

Majority

p. 71

Same Term.

Before the same Justice.

Jacobs vs. Hooker.

Headnote

Where papers are served by mail, in the manner directed by the rules, the risk of miscarriage is with the party to whom they are directed.

No costs are allowed on motions, unless such motions are necessary, for the attainment of some substantial right in the cause; except they are awarded by way of punishment.

D. D. Field,

for the defendant, moved to set aside a verdict and all subsequent proceedings, because a judgment as in case of nonsuit had been perfected previous to the circuit at which the verdict was obtained.

H. J. Raymond,

for the plaintiff, had a cross motion to set aside the judgment as in case of nonsuit, on an affidavit stating that within twenty days after the rule for judgment, he had mailed to the defendant’s attorney, agreeably to the rules, a stipulation, and within fifteen days after taxation of the costs of the circuit, had paid them.

Field,

contra, read an affidavit of the defendant’s attorney, denying that the stipulation had ever been received.

That makes no difference. The risk of miscarriage falls upon him to whom the paper was directed. The rule says that such a service shall be a good one; and of necessity, therefore, the risk must be with the party to whom it is sent. Both judgments were irregular and must be set aside; but without costs. We allow no costs on motions, unless the motions are rendered necessary for the attainment of some substantial right in the cause; except sometimes we may allow them by way of punishment. My only doubt is whether I ought not to charge the defendant with the costs of setting aside his judgment. When he received the costs of the circuit after the stipulation, he knew why they were paid, and that was enough to put him on inquiry. He ought not, after that, to have perfected the judgment. I will allow the costs of the motion to set aside that judgment to abide the event. No other costs of these motions, either way, will be allowed.