Carpenter v. Downing

6 Hill & Den. 234

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

Opinion

By the Court, Bronson, J.

As the moving papers have been sufficiently answered, the motion must be denied with costs. The defendants must also pay the costs of preparing for the last November circuit up to the time the order to stay proceedings was served. If the motion had been granted, the defendants would have been required to pay those costs, because they did not move sooner,

(a) They got their information concerning the supposed change of residence about the first of September, and if an order had been served at that time, the plaintiff could have shown cause at the October special term; and whether the motion had been granted or denied, the plaintiff could have had a trial at the November circuit.

Ordered accordingly.

In Goff v. De Mott and others, decided at the same term, the defendants moved for an order requiring the discovery of books and papers; and the following opinion was delivered:

By the Court, Bronson, J. The motion must be granted. But it appears that the defendants might have obtained the discovery in season for the last Seneca circuit. Instead of moving without delay, they waited until after a notice of trial, and then obtained an order to stay proceedings with a view to this motion, which has had the effect of throwing the plaintiff over the circuit They must therefore pay the costs of noticing and preparing for the circuit up to the time when the order to stay proceedings was served.