Bates v. Loomis

5 Wend. 78

Opinion

By the Court,

Marcy, J.

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.