Jackson ex dem. Eden v. Varick — 7 Cow. 412

Majority

p. 412

Jackson, ex dem. Eden, against Varick and Bacon

UTICA,

August, 1827.

Headnote

Omitting to for^axatioí^ d,oes not the regularity of the judg-

only consequence párty can ^e comPelled to own expense.

ceptions °stays proceedings no longer than while it is undetermined1 in the supreme court.

In ejectment for premises in the city of New York.

A verdict having passed for the plaintiff, the defendants made a case upon which to move for a new trial. A bill x of exception^ was also sealed by the judge who tried the cause. This court denied a new trial upon the case; but ordered that the defendants should have the benefit of their bill of exceptions, for the purpose of bringing error. The order was on the 5th of June. The plaintiff immediately perfected his judgment, issued a writ of possession, and caused it to be executed on the 7th of June, without having given any notice of taxing the costs.

, „ „ „ The defendants afterwards brought a writ of error; upon which the cause is now depending in the court of errors,

*J. Platt,

now moved to set aside the writ of possession, with all the subsequent proceedings, and that a writ of restitution issue; on the ground that the proceedings on the part of the plaintiff were irregular. He relied on the grounds, that no notice of taxing the costs had been given; and that the bill of exceptions was a stay of proceedings, per se.

G. C. Bronson, contra.

The omission to give notice of taxing costs, never affects the regularity of the judgment. This has been ruled many times; and the practice is settled beyond all dispute. The only consequence of omitting notice, is a re-taxation at the expense of the party.

p. 413

True, a bill of exceptions stays proceedings, per se, while •£ jg peeing for argument in this court; but not a moment longer. The party who prevails, may, op our passing upon it, take the effect of our decision as. soon as he pleases, subject to be arrested by writ of error and bail within the 4 days. A writ of error has, in this case, been prosecuted; but no bail is in to this day.^[1]

Motion- denied.

[1] [1] In the state of New York, in the practice under the code, the effect of omitting to give notice of adjusting the costs, in the cases'where the defendant is entitled thereto, has been differently decided. In the Bank of Massilon, 2 Code Rep. 49 ; Goldsmith, v. Marpe, ib. 49; Doke v. Peek, 1 Code Rep. 54 , Elson v. N. Y. Equit. Ins. Co., 2 Code Rep. 36 , it was held that the omission made the judgment irregular, *md liable to be set aside on motion. But in Richards v. Swetzer, 1 Code Rep. 117 ; Hughes v. Mulvey, 1 Sandf. Sup. Ct. Rep. 92; Dix v. Palmer, 3 Code Rep. 214 ; 5 Pr. Rep. 233, the omission was held not to affect the regularity of the judgment, but only to entitle the defendant to a re-adjustment at the cost of the plaintiff. See Voorhie’s Code pp. 251, 25 8.