Majority
p. 384Harden and others vs. Hardick.
Headnote
Where the plaintiff enters a rule to discontinue on payment of costs, the defendant is not entitled to costs for entering up judgment.In such case no judgment need be entered; if the defendant’s costs are not paid on taxation, he may treat the rule as a nullity, and proceed with the cause the same as if none had been entered.
Re-taxation of costs. The plaintiffs entered a rule to discontinue on payment of costs, and gave notice thereof to the defendant’s attorney, offering to pay the costs when taxed. The taxing officer allowed the defendant the usual costs for entering up judgment. A motion was now made, in behalf of the plaintiffs, for re-taxation.
Miller McKinstry, for the motion.
J. Gaul, jr. contra.
By the Court,
The defendant is only entitled to such costs as had accrued at the time notice of discontinuance was received. If not paid on taxation, he may proceed in the cause the same as if no rule to discontinue were ever entered; (McKenster v. Van Zandt, 1 Wend. 13 ; Grah. Prac. 604, 2d ed.;) for in such case the rule may be treated as a nullity. (Id. ibid. Leonard v. Slaughter, 10 John. R. 367; Robinson v. Taylor, 12 Wend. 191 .)
Motion granted.
Cases cited
- M'Kenster v. Van Zandt 1 Wend. 13 p. 384
- Robinson v. Taylor 12 Wend. 191 p. 384