Spencer v. President of the Canal Bank — 2 How. Pr. 19

Majority

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Susannah Spencer agt. The President, &c., of the Canal Bank of Albany.

Headnote

Where a motion was made for the payment over, by plaintiff or her attorneys, of certain moneys, and separate copies of the papers for the motion were served on the plaintiff and her attorneys, and the motion was denied with costs to be taxed. Meld, that the plaintiff and her attorneys were not entitled to two bills • of costs for opposing, although they made out separate papers in opposition.

December Term, 1845.

Motion by Richard S. Corning to set aside a precept. •

In February, 1844, *a motion was made, entitled in this cause on the part of Richard S. Corning, at the February special term, 1844, for an order requiring the plaintiff or her attorneys to pay over certain moneys, &c., which motion was denied with costs to be taxed. Copies of the papers for that motion were served on the plaintiff, and on Cagger and Stevens, her attorneys; separate and distinct papers were made and used in opposition to the motion. Separate bills of .costs were made out, copies served with notice of taxation, both bills on the taxation were opposed on the part of Corning. After the taxation of'both bills, the amount at which the first was taxed was paid by the agent of Corning, the second bill was objected to as improper, on the ground that but one motion had been made. The taxation took place in February or March, 1844. Subsequently the second bill of costs was demanded of Corning, and payment refused, - and thereupon an ex parte motion was made by Cagger and Stevens for a precept, which was granted with costs to be taxed, at the

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June special term last; which precept was delivered to the. sheriff for execution, and Corning was arrested in September last.

A. C. Griswold, counsel and attorney for Corning.

P. CAGGER, counsel and attorney for plaintiff.

On the part of the plaintiff, it was insisted that the plaintiff * was entitled to two bills of costs for opposing the motion; also that this motion was too late.

Under the rule of the 9th of February, 1844, only one bill of costs was ordered for opposing. The taxation of the second bill was a nullity, and Corning, in whose behalf the motion was made, was liable to pay costs, and having paid the bill as taxed, lost nothing by waiting until proceedings were taken to enforce payment of the second bill. (Graham’s Practice, 2 ed. 705.)

Motion granted with $10 costs, upon condition that Richard S. Corning stipulates that he will not bring any action for his arrest by virtue of the said precept.