Mechanics' Bank v. Snowden — 2 Paige Ch. 299

Majority

p. 299

The Mechanics’ Bank vs. Snowden.

Headnote

Where a defendant gave notice of his intention to appeal from the decision of a vice chancellor on an interlocutory motion, and that he should bring on the hearing of such appeal on the next motion day before the chancellor ; and the complainant’s counsel attended on that day to oppose the application, but no appeal was in fact entered, the defendant was charged with the costs of opposing.

The chancellor has jurisdiction to award such costs, although the cause is not regularly before him by appeal.

August 24th.

The defendant applied' to the vice chancellor of the first circuit to set aside an order taking the bill in this cause as confessed; which was denied with costs. The defendant’s solicitor then gave notice that he intended to appeal from that decision, and that he should bring on the hearing upon the appeal on the next motion day before the chancellor. The counsel for the complainant appeared on that day, but no appeal had in fact been entered. The only question was whether any and what costs the defendant was liable to pay.

B. F. Butler, for the complainants.

J. Rhoades, for the defendant.

' As no appeal has been actually entered, the complainants are not entitled to the usual costs on the affirmance of an order. But having been improperly brought here, the defendant must pay them the costs of appearing to oppose the hearing on the appeal. The chancellor has jurisdiction to award such costs, although there is no general jurisdiction in relation to the cause,-which is not regularly before him. ( The People ex rel. Mallard, v. The Judges of Madison County. 7 Cowen, 423. )