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Schermerhorn v. Noble

1 Denio 682 Court N.Y. English

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p. 682
Schermerhorn vs. Noble.

Headnote

Where a motion for judgment as in case of nonsuit was made in several causes in which the plaintiff was the same, but the defendants were different in each, vpon one set of papers, the attorneys being the same in each, and the facts on which the motion depended identical, and leave was given to stipulate on payment of the costs of the motion; held, that the defendants were entitled to but one sum of $10 in all the causes.
The rule would have been the same if different papers had been served for each cause. Per Jewett, J.
There were thirty-one other causes in favor of the same plaintiff against different defendants, and the attorneys are the same in each. A motion was made for judgment as in case of nonsuit, grounded on one affidavit, and a notice in which the titles of all the causes are included. .The motion was granted with leave to the plaintiff to stipulate on payment of the costs of the motion, and the question then arose whether the defendants were entitled to $10 costs in each suit, or to only one bill of $10.
p. 683
FT. Wells, for the defendant.
Davis, for the plaintiff

There is no ground under the practice for a long time well settled to entitle the defendant’s attorney to more than $10 costs in all the causes. .These motions were in fact, as it was proper that they should have been, consolidated; the same person is plaintiff in each cause, and although the defendants are different, the attorneys in each cause are the same; the motion made in each is upon the same grounds, 'and is supported by the same facts. The defendant’s attorney has lost nothing by consolidating the motions, for if- they had been sustained by a set of papers in each case, no more than $10 could have been allowed him for all the motions, as it would have been unnecessary that each motion should have been sustained by a distinct set of papers. (Jackson v. Keller, 18 John. 310 ; Jackson v. Clark, 4 Cowen, 532; Jackson v. Garnsey, 3 id. 385 ; Jerome v. Boeram, 1 Wend. 293 .)[1]

Ordered accordingly.

(a) (a) This point was too well settled when such costs were taxed by items to require to be again noticed in the reports, and this case is published simply to shew that the limitation of the costs of the moving party to $10 upon each motion does not change the rule.

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