Robinson v. Taylor — 12 Wend. 191

Majority

p. 191

Robinson and others vs. Taylor.

Headnote

A plaintiff who discontinues his suit after the defendant has retained an attorney, though before receiving notice of retainer, is bound to pay costs.

The defendant served a plea, and the plaintiff neglecting to bring the cause to trial, a motion was made for judgment as in case of nonsuit. It appeared, that after the defendant had retained an attorney to defend the suit, but before service of notice of retainer, the plaintiff had entered a rule for discontinuance, and the plaintiff therefore insisted that the motion should be denied.

June 5

By the Court,

The discontinuance without payment of costs was a nullity. The defendant having, previous to the rule for discontinuance, incurred costs by the retainer of his attorney, the plaintiff, on discontinuing his cause, was bound to pay such costs. On receiving notice of retainer, he should have ascertained when the defendant’s attorney was employed, and if employed before the entry of the rule for discontinuance, he should have paid the defendant’s costs.

Motion granted.