Majority
p. 546Wooster against Perry. . They said the notice constited no part of the record, (Vaughan v. Ravens, 8 John, Rep. 109 ;) and where papers are unnecessarily copied into a record, they will not be allowed in taxation. (Jackson v. Mather 3 Cowen’s Rep. 584.) The notice was not neccssary in the record, even at nisi prius. If denied, it must be proved by affidavit or orally. Though not technically a plea, and therefore not of record without a proper suggestion, yet it often is, and always may he, material as a part of the record in determining the admissibility of evidence, and on' bill of exceptions, &c. Besides, the counsel who try the cause rarely serve the pa* pers, and cannot prove the notice. If in the nisi prius record, it should also be in the judgment roll.
Headnote
Prima facie, the plaintiff’s •attorney is right in copy-ant’s notice of erás record and judgment roll, and may have this service taxed.If it be, in cessary, "““oñ showing this officert taTo Bhouid strike
On a verdict for the plaintiff, he had procured the costs of entering the defendant’s notice of special matter, on the r°H and tiisi prius record, to be taxed by a commissioner, which
A, Loomis and O. G. Otis, for the defendant, moved t. o have stricken out of the bill.
M. Hoffman, contra, said the notice was, in fact, engrossed upon the N.P. record and judgment roll, with the suggestion "that it had been given with the general issue.
Prima facie, it is proper to make the notice of 'special matter a part of the record. It is true, that under certain circumstances, this might be altogether useless ; in which case, it should be stricken out on taxation. But nothing of this was shown to the taxing officer or to us ; and the motion must be denied.
Motion denied.[1]
(a) (a) Vid. Van Rensselaer v. Hamilton, ante, 539.