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Chadderton v. Backus

6 Wend. 521 Court N.Y. Sup. Ct. Decision date 1831-02-17 English

Delivered by Sutherland, J.

Contents

Majority

p. 521
Chadderton vs. Backus.

Headnote

Where a plaintiff stipulates to try and to pay the defendant’s costs, but neglects on demand to pay, the defendant may apply for judgment as in case of nonsuit, notwithstanding the stipulation.
Motion for judgment as in case of nonsuit. The plaintiff having failed to bring on his cause to trial pursuant to notice, delivered a stipulation to try at the next circuit, and to pay the defendant’s costs. The costs were taxed and demanded, and not being paid, the defendant moved for judgment as in case of nonsuit. It was objected that the motion was unnecessary, that the defendant should have filed
p. 522
the stipulation, and entered a rule for judgment in the common rule book, and 3 Caines, 135, and 3 Cowen, 15, were relied upon to shew that such was the practice.
Jl. Loomis, for defendant,
D. Burnell, for plaintiff.

By the Court,

The defendant has proceeded correctly; the costs not being paid when demanded, he has a right to apply for judgment as in case of nonsuit. Rule 42. The defendant is entitled to judgment, unless the costs due under the stipulation, together with the costs of this motion, be paid within ten days.