Bates v. Loomis — 5 Wend. 78

Majority

p. 78

Bates vs. Loomis.

Headnote

On a motion to the court, if the parly asks in his notice for greater or other relief than that to which he is entitled, although his motion be granted in part, he will not be allowed costs.

Question of costs of non-enumerated motion. The defendant gave notice of his intention to move this court to set aside the default entered in this case for not pleading, and all subsequent proceedings for irregularity. It. appeared on ex

p. 79

amining the case that, the default was regularly entered, but that the subsequent proceedings were irregular. The defendant’s counsel said he waived that part of the application which related to the default, and asked that the subsequent proceedings be set aside with costs.

JIL T. Reynolds, for defendant.

J. Edwards, for plaintiff.

By the Court,

The proceedings subsequent to the default must he set aside, but no costs to he paid by the plaintiff By asking for greater and other relief than lie was entitled to, the defendant compelled the plaintiff to come into court, to resist the motion, and he has done so successfully as to pari of it. In ordinary cases, where a motion is successfully resisted, the party opposing is entitled to costs; but here, the party moving succeeding in part of bis motion, would be entitled to costs but for the right of bis adversary to costs. As both parlies, therefore, are entitled to costs, instead of directing a sel-olf of one bill against the Ollier, the practice of the court, is to allow costs to neither parly. The waiving of the motion as to the default, on the hearing, does not change the rights of the parties.