Wolf v. Luyster — 1 N.Y. Super. Ct. 220

Majority

p. 220

Joel Wolf versus Abraham R. Luyster.

Oct. Term, 1828.

Headnote

Where, upon demurrer to the plaintiff’s declaration, the demurrer is overruled, and leave given to the defendant to answer over upon payment of costs, it is the duty of his attorney to seek the opposite party without delay, pay the costs, and plead to issue.

Judgment having been rendered in favour of the plaintiff in this cause upon demurrer to his declaration, the defendant was allowed to withdraw the demurrer, and answer over upon payment of costs. The defendant having neglected to do this, the plaintiff proceeded with his cause, and executed a writ of inquiry.

Mr. J. Anthon, for the defendant,

on an affidavit of merits, and papers showing, that after the execution of the writ of inquiry,

p. 221

and before the expiration of the rule for judgment, the defendant offered to avail himself of the benefit allowed him by the rale on the demurrer, and also that his neglect in not sooner pleading had arisen solely from the .illness of his attorney, now moved to set aide the writ of inquiry and proceedings subsequent thereto, for irregualarity. He contended, that the defendant was entitled to fifteen days after service of the rule for judgment on the demurrer, within which to plead and pay the costs, because no time for this purpose was fixed by the court.

Mr. Judah, for the plaintiff,

insisted, that his proceedings were all regular, it being the duty of the defendant, if he wished to a-A'ail himself of the proviso in the rule for judgment on the demurrer, to pay the costs, and plead immediately, Viz. within twenty four hours. [He cited 2 Cowen, 452-599. n. b. also Sands v. Mc Lellan, 6 Cowen, 582. and n.] He also contended, that if his proceedings were regular, they could not be set aside, a trial having been lost.

The plaintiff’s proceedings were all regular, according to the practice of the Supreme Court. Where a favour is granted to a party upon payment of costs, it is his duty to seek the adverse party immediately, or Avithin 24 hours, pay the costs, and then avail himself of the benefit allotved by the rule. In this case, however, as it appears that the defendant’s attorney Avas unable to attend to his professional duties, by reason of sickness, and there is an affidavit of merits, the proceedings upon the writ of inquiry, and subsequent thereto, must be set aside. The defendant, however, must pay all the costs up to this time, upon the presentment of the taxed bill; and until that is done, the judgment must stand.

[S. B. H. Judah, Att'y for the plff. H. Western, Att’y for the deft.]

Note.—The court intimated that the practice in Such cases, hereafter, would be, that if the taxed bill Avere not paid upon presentment, the party in whose favour it had been taxed would be at liberty to proceed.