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Smith v. Pepoon

25 Wend. 251 Court N.Y. Sup. Ct. English

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Majority

p. 192
Smith vs. Pepoon.

Headnote

Double costs are allowed in the court for the correction of errors, on the affirmance of a judgment for the default of the plaintiff in error to appear and argue when the cause is called on the calendar.[1]
J. Van Burén appeared for the defendant in error, on the [ *252 ] cause being, called on for argument, and on producing proof *of due service of notice of argument on the attorney for the plaintiff in error, moved that the judgment be affirmed with double costs. He said that such was the practice of the supreme court.

said the motion ought to prevail. If the plaintiff had appeared and argued his case, and it had appeared that the writ of error was frivolous, it would have been of course to allow double costs. Not having appeared, the court could not know whether the writ of error was frivolous or not, without looking into the record, which would not be done when the plaintiff did not' appear to argue. He thought, therefore, it would be well to adopt the practice of the supreme court in such cases, and accordingly proposed that the judgment be affirmed with double costs, or in the words of the statute, that the plaintiff in error be allowed “ twice the amount of his taxed bill of costs.” The court concurring in the suggestion of the chancellor, a rule was entered accordingly.