Majority
p. 254SUPREME COURT. Davison agt. Waring. Benedict agt. Same. Westcott agt. Same. Albany Special Term, Feb. 1854.
Headnote
A plaintiff is not entitled to an extra allowance, where the defendant before the plaintiff is entitled to take judgment by default, comes in and confesses judg ment, although the proceedings against defendant are by attachment.Motion for extra allowance.
Warrants of attachments, in each of these causes, and eight others, were issued to the sheriff of Saratoga, by virtue of which the property of the defendant was seized. A few days after, the defendant served upon the plaintiffs’ attorneys, in each of the above actions, an offer to allow judgment to be taken against him, pursuant to the 385th section of the Code. The offers having been accepted,'the plaintiffs moved for an extra allowance of costs.
Pond, Lester, & Bartlett, for Plaintiffs.
A. Bockes, for Defendant.
I do not think the plaintiffs present a proper case for an extra allowance. It is true, that it is usual, where the creditor has been obliged to proceed against his debtor by attachment, to make a moderate allowance for the additional trouble attending such proceedings. But where, as' in these cases, the defendant, before the plaintiffs are entitled to take judgment by default, comes in and confesses judgment, I think, as a general rule, the plaintiff should not have an extra allowance. In these cases there is no pretence that the proceedings were attended with any more than ordinary labor or difficulty. The motions must, therefore, be denied.