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Webb v. Bulger

4 Hill & Den. 588 Court N.Y. English

Delivered by Nelson, Ch. J.

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p. 588
Webb vs. Bulger & Bulger.

Headnote

In general, there can be but one judgment record in the same cause.
Where, however, in an action of assault and battery against two defendants, a verdict was rendered in favor of one and against the other, whereupon the latter made a bill of exceptions, and the former perfected judgment for his costs, the court permitted the judgment to stand on condition that the costs of entering it up should be deducted, though the cause was still pending on the bill of exceptions.
Assault and battery. A verdict having been rendered in this case against one of the defendants, and in favor of the other, the latter perfected judgment against the plaintiff for costs, including the costs of the judgment, and the other defendant made a bill of exceptions.
E. A. Doolittle, for the. plaintiff,
moved to set aside the judgment, on the ground that the cause was still pending and undetermined, and that but one judgment record could be made and filed in the same cause.
R. W. Peckham, contra,
cited Hallock v. Powell, (2 Caines, 216, 218 ;) Day v. Hanks, (3 T. R. 654, 656 ;) Canfield v.
p. 589
Gaylord, ( 12 Wend. 236 ;) 2 R. S. 617, § 26; Cutler v. Goodwin, (1 Str. 420;) Kirk v. Nowill, (1 T. R. 266.;) Braithwaite v. Bradford, (6 T. R. 599.)

By the Court,

The defendant who obtained a verdict is entitled to his judgment for costs ; but there should be but one record. This is, however, mere matter of form ; and if the costs of entering up judgment be deducted, the plaintiff cannot be prejudiced. On making such deduction, the judgment may stand.

Ordered accordingly.

Cases cited