Carpenter v. Downing — 6 Hill & Den. 234

Majority

p. 234

Carpenter vs. Downing and others.

Headnote

Where a defendant, after the cause is noticed for trial, serves papers for a motion, together with an order to stay proceedings, and thus causes a loss of the circuit, which he might have avoided by due diligence, he will be required to pay the plaintiff’s costs of preparing for the circuit up to the time the order to stay proceedings was served; and this, whether the motion be granted or denied.

On the 13th of November, the defendants obtained a judge’s •order that the plaintiff file security for costs in twenty days, or show cause at the next special term: and in the mean time staying the plaintiff’s proceedings. The order was obtained on an affidavit that the plaintiff had removed from the state in April last, which fact did not come to the knowledge of the defendants until about the first of September last.

R. L. Joice, for the defendants, now moved for an order absolute.

E. Clark, contra,

showed for cause that the plaintiff had not changed his residence, but was only temporarily absent from

p. 235

the state on business. He asked costs for preparing for the last Rensselaer circuit, in November, for which the cause had been noticed before the order was served, and which circuit the plaintiff would not have lost if the motion had been made without delay;

As the moving papers have been sufficiently answered, the motion must be denied with costs. The defendants must also pay the costs of preparing for the last November circuit up to the time the order to stay proceedings was served. If the motion had been granted, the defendants would have been required to pay those costs, because they did not move sooner,^[1] They got their information concerning the supposed change of residence about the first of September, and if an order had been served at that time, the plaintiff could have shown cause at the October special term; and whether the motion had been granted or denied, the plaintiff could have had a trial at the November circuit.

Ordered accordingly.

(a) (a) In Goff v. De Mott and others, decided at the same term, the defendants moved for an order requiring the discovery of books and papers; and the following opinion was delivered: By the Court, Bronson, J. The motion must be granted. But it appears that the defendants might have obtained the discovery in season for the last Seneca circuit. Instead of moving without delay, they waited until after a notice of trial, and then obtained an order to stay proceedings with a view to this motion, which has had the effect of throwing the plaintiff over the circuit They must therefore pay the costs of noticing and preparing for the circuit up to the time when the order to stay proceedings was served. Ordered accordingly.