Fort v. Palmerton

19 Wend. 94

• Court: New York Supreme Court
• Decided: February 15, 1838
• Status: Published

Opinion

By the Court,

Bronson, J.

When the defendant has been sentenced to the state prison, or discharged under an insolvent law, the plaintiff has been allowed to discontinue without costs, on the ground that the defendant had by his own act put it out of the power of the plaintiff to obtain the fruits of a recovery. If, in such cases, the defendant -will give security to pay any judgment that may be obtained against him, I see no reason why the plaintiff should be excused from proceeding with his action. This being an action of ejectment, the remedy of the plaintiff cannot be prejudiced by the conviction, except as to costs, and mesne profits. If the defendant shall within twenty days give sufficient security to be approved by one of the clerks of this court to pay all such costs and mesne profits as may be adjudged against him, then the plaintiff must renew his slipulation to try and pay costs; otherwise the motion for judgment as in case of nonsuit is granted. If such security shall not be given, the plaintiff may discontinue without costs.

Order accordingly.