Butler v. Bates

New York Supreme Court

Butler v. Bates

5 Hill & Den. 375

DecidedJune 15, 1843

StatusPublished

This text of 5 Hill & Den. 375 (Butler v. Bates) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Butler v. Bates, 5 Hill & Den. 375 (N.Y. Super. Ct. 1843).

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Opinion

By the Court, Cowen, J.

In Johnson v. Gay, (6 Cowen, 54,) this court held that, if referees could adjourn upon the terms [376]*376of the party paying costs, yet any order or direction made by them would afford no ground for compelling the payment by attachment. Since that decision the 2 R. S. 305, 6, 2d ed., § 44, gives referees a qualified power to adjourn, which Sickles v. Fort (12 Wend. 199) holds may be on payment of costs, or, as there expressed, “ they may impose such terms as are usually imposed by courts upon putting off trials.” This case, however, does not hold that the terms will be enforced by motion, as they may on putting off a trial at the circuit; nor does Van Rensselaer v. Fay, (18 Wend. 509.) The result of the cases is, that the terms can operate as a mere condition, which, if not complied with, entitles the party opposing the adjournment to proceed at once to a hearing. This seems to be his only remedy. The referee may doubtless, before allowing an adjournment, require the party applying to stipulate in writing that, if the costs be not paid, the collection may be enforced by a rule in the cause.

Motion denied.

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By the Court, Cowen, J.

In Johnson v. Gay, (6 Cowen, 54,) this court held that, if referees could adjourn upon the terms [376]*376of the party paying costs, yet any order or direction made by them would afford no ground for compelling the payment by attachment. Since that decision the 2 R. S. 305, 6, 2d ed., § 44, gives referees a qualified power to adjourn, which Sickles v. Fort (12 Wend. 199) holds may be on payment of costs, or, as there expressed, “ they may impose such terms as are usually imposed by courts upon putting off trials.” This case, however, does not hold that the terms will be enforced by motion, as they may on putting off a trial at the circuit; nor does Van Rensselaer v. Fay, (18 Wend. 509.) The result of the cases is, that the terms can operate as a mere condition, which, if not complied with, entitles the party opposing the adjournment to proceed at once to a hearing. This seems to be his only remedy. The referee may doubtless, before allowing an adjournment, require the party applying to stipulate in writing that, if the costs be not paid, the collection may be enforced by a rule in the cause.

Motion denied.

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Bluebook (online)

5 Hill & Den. 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-bates-nysupct-1843.

Opinion

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