OCTOBER TERM, 1844, TO SEPTEMBER TERM, 1845.

BY NATHAN HOWARD, JR.,

COUNSELLOR AT LAW AND DEPUTY CLERK OF THE SUPREME COURT.

VOL. I.

ALBANY:

JOEL MUNSELL, 58 STATE STREET.

1845.

Entered according to Act of Congress, in the year 1844,

BY NATHAN HOWARD JR.,

In the Clerk's Office for the Northern District of New-York.

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NEW YORK SUPREME COURT

SPECIAL TERM REPORTS.

OCTOBER TERM, 1844.

MR. CHIEF JUSTICE NELSON PRESIDING.

PEOPLE ex rel. CRANDALL VS. BABCOCK.

The admission by defendant of due service of information, does not authorize the plaintiff to enter a default for want of a plea in twenty days, where by the rules the defendant is entitled to double time (40 days) to plead.

Motion by Defendant to set aside default and subsequent proceedings.— Entered by the relator in twenty days after the date of admission of the due service of the information, which was served through the post office on the defendant's attorneys. The defendant's counsel insisted they had forty days to plead under the rules of court-that the default was irregular.

The relator's counsel insisted that defendant's attorneys having signed and returned an admission of due service of the information, the default was regular in being entered in twenty days after the date of such due

service.

BOWNE & CRIPPEN, Defts Attys. G. P. BARKER, Atty Gen for Rel. Decided, that the defendant has double time to plead by the rules, the admission of due service, being nothing more than admitting due service through the post office,-it can not take it out of the rule.

Motion granted with costs.

FEAKINS VS. ENGEL.

Plaintiff may amend his declaration, changing the venue, on terms, where the motion is made before the cause is reached on the calendar. He is not bound to discontinue.

Motion to amend the declaration, by changing the venue from Otsego to Schoharie.-The declaration being for an action on the case for injuries to the person. Plaintiff's attorney supposing by a late statute the

6] action was transitory, the cause of action arising in the county of Schoharie. The defendant pleaded general issue. The cause was noticed for trial at Otsego circuit, and before being reached on the calendar, plaintiff's attorney discovered his mistake in the venue, and offered defendant's attorney costs of circuit and witnesses, to allow him to change the venue to Schoharie county. Defendant's attorney declined the proposition, and alleged plaintiff was bound to discontinue the suit.

J. D. HAMMOND, Atty for Plff.

D. LAWYER, Atty for Deft.

Decided, that motion be granted, on payment of costs of opposing motion, and costs of the plea pleaded; defendant to have 20 days to plead to amend declaration; no new declaration need be served.

DAYTON VS. VINCENT.

It seems, that where a rule for judgment as in case of non-suit is granted on opposition, the defendant should serve a copy of the rule, and demand his costs; otherwise the plaintiff may set aside the rule on terms.

Motion to set aside a rule of last August term, granting judgment as in case of non-suit, unless plaintiff stipulate and pay costs.-Plaintiff's facts. Plaintiff's attorney was ignorant of the conditions of the rule for judgment as in case of a non-suit, and depended on defendant's attorney to serve a copy, which was never done, and no costs ever demanded; he had always been willing to comply with the conditions of the rule; there was a dispute about the costs of the circuit; he told defendant's attorney when he served a copy of the rule, he was ready to comply with the conditions of it. Defendant's facts: the motion in August was made on the usual papers, and was opposed by plaintiff's attorney personally, and motion granted on the spot, in presence and hearing of plaintiff's attorney, costs were taxed on regular notice to plaintiff's attorney, and he opposed the taxation and knew the amount they were taxed at-after twenty days, the costs not being paid, defendant's attorney proceeded and entered judgment.

GEO. A. SHUFELT, Defts Atty.

S. B. NOBLE, Piffs Atty. Decision. That judgment and all subsequent proceedings be set aside on payment of the costs defendant was entitled to by the rule of August last and costs of opposing motion, and $10 costs of making motion to stay proceedings, and also all costs of perfecting judgment of non-suit.

DAYTON VS. VINCENT.

Plaintiff must stipulate and pay the costs, where the defendant has a rule to that effect, before he can properly notice the cause for trial.

Motion for an order directing the clerk of the circuit New York [7 to strike this cause from the calendar, and for a perpetual stay of proceedings on part of plaintiff.—Facts on both sides the same as in the last cause, the cause having been noticed for trial by plaintiff's attorney. GEO. A. SHUFELT, Defts Atty. S. B. NOBLE, Piff's Atty.

Decision. That the motion be granted unless plaintiff in twenty days pay to defendant or his attorney, the costs defendant is entitled to under the order of 6th August, and costs of all subsequent proceedings and also $10 costs of this motion.

WADE VS. WADE.

Where plaintiff's attorney omitted (by mistake) to serve a copy order staying proceedings to prepare and serve a case, until judgment had been entered and notice of taxation of costs given, held, that he might have twenty days for that purpose, on payment of costs of motion: judgment to stand as security.

Motion for leave to plaintiff to prepare and serve a case in this cause, and for a stay of defendant's proceedings until the order of this court thereon.-Facts: Plaintiff's attorney procured an order from the circuit judge next day after the trial for this same purpose and informed defendant's attorney of it, but did not serve a copy of said order (by mistake) until some eight days afterwards, in the mean time defendant's attorney had perfected his judgment and given notice of taxation of costs. G. W. BULKLEY, Piff's Atty. Decision. Plaintiff may have twenty days to make and serve a case, and if done, defendant's proceedings to be stayed until the further order of this court. Judgment of defendant to stand as security on payment of costs of motion.

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WM. H. TOBEY, Defts Atty.

LEARNED VS. BETTS et al.

Two subpoenas ($2·00) and two attorney and counsel fees ($16.00) on hearing at two different times, stricken out, where the cause had but once been noticed, and adjourned twice by consent.

Motion for re-taxation of defendant's costs.—Plaintiff objected before the taxing officer to two subpoenas and two attorney and counsel fees, on the ground that the cause had but once been noticed before the referee; it was adjourned by consent of both parties once, no testimony having been taken, and once by the referee with consent of both parties, after the testimony had been entered upon.