Majority
p. 175Jackson against Mann. read an affidavit setting forth that the plaintiff, for want of a material witness, who could not
Headnote
If a plaintiff notice his cause for trial, and afterwards countermand it, he must pay the defendant the intermediate costs of subpoenaing his witnesses.Woodworth moved for judgment as in case of nonsuit, for not proceeding to trial according to notice, on an affidavit stating that the cause being duly noticed, the defendant issued and served subpoenas on his witnesses, after which the notice was countermanded.
Schoenhoven, contra,
p. 176be then, found, was unable to proceed to trial, and that notice of countermand had been given four days before the circuit court; he therefore insisted, there was no ground for the application, and that from the principle of Brandt v. Buckhout,[1] the defendant could not only take nothing by his motion, but the plaintiff was entitled to his costs for opposing. distinguished this from the case mentioned, by the defendant’s having been here put to costs.
Woodworth
The only question here is, who shall pay the expense. The plaintiff must certainly bear the charges of his own countermand; that and the notice are equally his acts; the expenses therefore incurred after notice, always fall to him, when he countermands. The judgment of nonsuit must, therefore, be refused, but the plaintiff to pay the defendant the costs of subpoenaing his witnesses prior to the countermand.[1]
On payment of costs up to the countermand,
Motion denied.
Radcliff and Livingston, Justices, absent.
[1] [1] See 2 Rev. Stat. 618, sec. 36; Keys v. Beardsley, 18 J. R. 135; 2 Wend. 241 ; 1 Id. 97; Jackson v. Brown, 1 Cai. R. 484 .