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Smith v. Howard

12 Wend. 198 Court N.Y. Sup. Ct. Decision date 1834-08-07 English

Delivered by Nelson, J.

Contents

Majority

p. 198
Smith vs. Howard.

Headnote

A plaintiff obtaining an inquest at the circuit is not bound to waive it upon the application of the defendant, though he offer to pay costs, &c, but may put him to his motion.
August 7.
The question in this case was, whether a plaintiff who has obtained an inquest at the circuit is bound to waive it, on being offered the costs and presented with an excuse verified by affidavit; and if he refuses to do so, whether he is chargeable with costs of motion.

By the Court,

A plaintiff who has regularly obtained an inquest is not bound to waive it on the applica

p. 199
tion of the defendant, let the excuse be what it may; but may put the defendant to his motion, who, if relieved, instead of receiving, must pay costs.