Majority
p. 525Howard & Ryckman vs. McKnight.
Headnote
Where a plaintiff has stipulated to try his cause, and to pay the costs, after a motion for judgment, as in case of nonsuit, the defendant cannot renew the motion until subsequent to a demand of the taxed bill, and a refusal to pay.Motion for judgment, as in case of nonsuit. About the first of July last the defendant’s attorney gave notice of a motion for judgment, as in cases of nonsuit, to be made at the then ensuing special term in August. Previous * to the term the plaintiffs’ attorney gave a stipulation to" try the cause at the then next circuit, and to pay the costs of the last *cir- [ *689 ] cuit, and of the motion. The defendant’s attorney had the costs taxed previous to the tenth day of August, and the same remaining unpaid, he renewed his motion at the September special term for judgment, as in case of nonsuit, or for such other rule as the court should see fit to grant. The motion was opposed, on the ground, that payment of the taxed bill had not been demanded.
P. Cagger, for the motion.
C. De Witt, contra.
By the Court,
The motion is irregular. The defendant should have demanded the costs as taxed, and if not paid, might have made this motion. 6 Wendell, 522. Unless the plaintiffs, however, pay the amount of the taxed bill, deduciing the costs of opposing this motion, let judgment as in case of nonsuit, be entered.
Ordered accordingly.