Alexander v. Carpenter — 3 Denio 266

Majority

p. 266

Alexander vs. Carpenter.

Headnote

The plaintiff’s attorney is not liable for the defendant’s eosts¡ where the plaintiff removed from the state pending the suit, but only where he was a non-resident when it was commenced.

A. K. Hadley, for the defendant,

moved for an order that the plaintiff’s attorney pay one hundred dollars of the costs which had been adjudged to the defendant in this action, on the ground that the attorney had proceeded in the cause after the plaintiff had removed out of the state, and without filing security for costs. The plaintiff was a resident of this stale at the time the suit was commenced ; but soon after removed out of the state. The suit went on, and the defendant finally had judgment to recover his costs, which were taxed at §111,25.

J. Pierson, contra.

Prior to 1830, there was neither any statute nor common law which rendered the attorney liable for costs, when he commenced a suit for a non-resident plaintiff, nor when he proceeded with the suit after the plaintiff had removed from the state, without filing security for costs. Both of those cases were provided for by the 14th rule of January term, 1799. In the late revision of the laws, the legislature seems to have thought that the court had been too hard upon the lawyers, and it was provided that the attorney should be liable for costs when the plaintiff should not be a resident of the state at the commencement of the suit. But he was not made answerable where the plaintiff removed out of the state after the suit was commenced. (2 R. S. 620, §§ 1, 7.) After the legislature undertook the regulation of the matter, the rule which has been mentioned was abolished; and since 1830, there has been no law nor rule of court making the attorney liable for costs in a case like this.

Motion denied.