Majority
p. 237Theodore P. Ballou vs. Orson Vandemark, imp’d, &c.
Headnote
A defendant in offering to pay costs to have the privilege of pleading, must offer to pay all the costs plaintiff is entitled to.Motion by defendant to require plaintiff to accept amended pleas served. —Action brought on a promissory note, with notice it was the only cause of action, &c. Defendant served plea of non-assumpsit, verified by affidavit, and two special pleas in bar, concluding with a verification without any affidavit. The two last mentioned pleas were returned by plaintiff’s attorney for the reason they were not verified by affidavit, that they were true in substance and matter of fact. Afterwards, and after the time for pleading had expired, defendant’s attorneys offered to serve amended pleas in bar as before, duly verified, which plaintiff’s attorney declined to receive unless his costs of preparing for trial were paid and defendant’s attorneys should take short notice of trial. Defendants attorneys agreed to accept the proposition but disagreed as to the amount of costs plaintiff’s attorney was entitled to. Plaintiff’s attorney claiming the costs of serving notice of trial and inquest, and proof of such service, subpoena and two subpoena tickets, copy pleadings and brief, as having been performed before the offer of the amended pleas. Defendants attorney offered to pay notice of trial and inquest only.
P. Dagger, Lefts Counsel. Smith & Hobby, Lefts Mty.
R. W. Peckham, Plffs Counsel. E. J. Richardson, Plffs Mtys.
Ordered, that on payment of the costs of preparing for trial at the next Oneida circuit, including brief and copy pleadings and costs of opposing motion, the last pleas stand as well served as of this day, and the plaintiff’s notice of trial to stand as served, at his election, notice of such election to be given on the payment of the costs.