Hyperlawhypertext legal database Elson v. New York Equitable Insurance 4 N.Y. Super. Ct. 654

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Elson v. New York Equitable Insurance

4 N.Y. Super. Ct. 654 2 Sandf. 654 Court N.Y. Super. Ct. Decision date 1849-08-01 English

Delivered by Duer, J. (The Chief Justice concurring.)

Contents

Concurrence

p. 654
Elson v. The New York Equitable Insurance Co.

Headnote

Where the defendant appears in the cause, though he omit to answer, he is entitled to notice of the adjustment of the costs; and a judgment entered without such notice, is irregular.
Aug. 1st, 1849.
Motion to set aside a judgment entered by default. The defendant served notice of his appearance, with an order extending the time to answer. The latter being irregularly served, was disregarded, and the plaintiff immediately entered judgment, without giving any notice of the adjustment of the costs.

Notice of the adjustment of the costs must be served in all cases where, the defendant has given notice of his appearance in the action. (Amended Code, § 311, 414.) The statute requires this, and the court cannot dispense with it. The former mode of taxing costs without notice, and then giving notice of re-taxing, is no longer

p. 655
possible, for the judgment itself is irregular, if notice be omitted after the defendant appears in the action. The judgment must be vacated.