Booth v. Whitby

5 Hill & Den. 446

• Court: New York Supreme Court
• Decided: July 15, 1843
• Status: Published

Opinion

By the Court, Bronson, J.

This judgment is right in principle, but wrong in point of form. The court granted the defendant an unusual favor in giving him twenty days to pay the costs of putting off the trial, and might impose such terms or conditions as they thought proper. If the defendant did not like the terms, he should not have taken the rule. Having taken it, and then neglecting to pay the costs, it was very proper for the court to enforce the order by rendering judgment for the plaintiff.

But the judgment should have been entered and the record made up in the usual form of a judgment by default. It looks strangely to see a judgment by default, with .an assessment of damages by the clerk, after an issue of fact joined upon the record. The record should not have contained the plea, nor the history of the proceedings by which the plaintiff became entitled to judgment.

As the error only goes to the form of entering a right judgment, the plaintiff below may be relieved on terms. The judgment must be reversed, unless he amends, and pays the costs of the writ of error.

Ordered accordingly.