Germain v. Beach

New York Court of Chancery

Germain v. Beach

9 Paige Ch. 232, 1841 N.Y. LEXIS 497, 1841 N.Y. Misc. LEXIS 92

CourtNew York Court of Chancery

DecidedJuly 20, 1841

StatusPublished

Cited by2 cases

This text of 9 Paige Ch. 232 (Germain v. Beach) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Germain v. Beach, 9 Paige Ch. 232, 1841 N.Y. LEXIS 497, 1841 N.Y. Misc. LEXIS 92 (N.Y. 1841).

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Opinion

The Chancellor.

The complainant’s solicitor sufficiently accounts for the delay, by showing that he mistook the practice. He supposed that his first service upon the solicitor, by putting the bill in the post office and paying the postage thereon, was not regular. In consequence of this mistake, he went through the process of serving the bill, and the notice to answer, a second time. When therefore the affidavit and other papers were afterwards shown to the defendant’s solicitor, apprising him of the mistake, and containing the information that the cause was then in readiness to take testimony, accompanied with an offer to pay the costs of the motion up to that time, such offer should have been accepted j instead of putting the com[233]*233plainant to the extra expense of coming here to resist this application.

The technical objection, that the name of the solicitor for the other defendants, who had suffered the bill to be taken as confessed, was not stated in the notice, is not well taken. The object of the provision in the 67th rule, requiring the names of the solicitors for the other defendants to be given, was to enable the party upon whom such notice should be served to give to the solicitors of his co-defendants notice of the application for an issue, if he wished to make such an application. It is not necessary, therefore, to give the names of the solicitors of the defendants’ against whom the bill has been taken as confessed, and who have no right to notice of the application for an issue. Here the affidavit, which was shown to the solicitor of Beach at the time of service of this notice that the cause Avas in readiness for hearing, stated that the bill was taken as confessed against all the other defendants. Beach therefore had no interest in knowing who were their solicitors.

As the complainant has been put to the expense of coming here to resist this motion, after he had done all that could be reasonably required under the circumstances, his costs in opposition to the application are an equitable offset against the costs which he offered to pay ; and Avhich offer was not accepted. The motion to dismiss is therefore denied, without costs to either party.

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The Chancellor.

The complainant’s solicitor sufficiently accounts for the delay, by showing that he mistook the practice. He supposed that his first service upon the solicitor, by putting the bill in the post office and paying the postage thereon, was not regular. In consequence of this mistake, he went through the process of serving the bill, and the notice to answer, a second time. When therefore the affidavit and other papers were afterwards shown to the defendant’s solicitor, apprising him of the mistake, and containing the information that the cause was then in readiness to take testimony, accompanied with an offer to pay the costs of the motion up to that time, such offer should have been accepted j instead of putting the com[233]*233plainant to the extra expense of coming here to resist this application.

The technical objection, that the name of the solicitor for the other defendants, who had suffered the bill to be taken as confessed, was not stated in the notice, is not well taken. The object of the provision in the 67th rule, requiring the names of the solicitors for the other defendants to be given, was to enable the party upon whom such notice should be served to give to the solicitors of his co-defendants notice of the application for an issue, if he wished to make such an application. It is not necessary, therefore, to give the names of the solicitors of the defendants’ against whom the bill has been taken as confessed, and who have no right to notice of the application for an issue. Here the affidavit, which was shown to the solicitor of Beach at the time of service of this notice that the cause Avas in readiness for hearing, stated that the bill was taken as confessed against all the other defendants. Beach therefore had no interest in knowing who were their solicitors.

As the complainant has been put to the expense of coming here to resist this motion, after he had done all that could be reasonably required under the circumstances, his costs in opposition to the application are an equitable offset against the costs which he offered to pay ; and Avhich offer was not accepted. The motion to dismiss is therefore denied, without costs to either party.

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Bluebook (online)

9 Paige Ch. 232, 1841 N.Y. LEXIS 497, 1841 N.Y. Misc. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/germain-v-beach-nychanct-1841.

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