Harper v. Chamberlain

14 Abb. Pr. 408

• Court: New York Supreme Court
• Decided: September 15, 1862
• Status: Published

Opinion

Barnard, J.

Under the circumstances of this case, the parties defendant should not be restricted to one bill of costs.

The papers show that D. Van Wart, Beebe, Dean & Donahue, Rice & Hill, and Ohatfield & Hadley, took charge of the suit for their respective clients from the commencement, to, and at the trial thereof.

They are entitled to full bills of costs as follows: D. Van Wart, one'bill; Rice & Hill, one bill; Ohatfield & Hadley, one bill; Beebe, Dean & Donahue, one bill.

As regards the other attorneys appearing in the case, it seems they were not present at the trial; the plaintiff might have taken their default, and perhaps taken an inquest against them. If he had so done, of course no question as to the costs of those attorneys could arise here. But, instead of doing this, he permitted a nonsuit to be entered against him as to all the defendants. His having done this should not wholly exempt him from paying costs to those who were in default at the trial. If, instead of allowing a nonsuit to be taken against him as to all the defendants, he had taken an inquest as to those who made default, there cannot be a doubt but that the court would have permitted the inquest to be opened, on payment of the trial-fee and cost of motion, and the defendants having thus got in, would in all probability, on a trial as to them, get back the trial-fee.

I think, therefore, that Charles L. Clark and J. M. Hatch are each entitled to have their costs up to and excluding the trial-fee ; but they should have no costs of opposing this motion.

Van Wart, Beebe, Dean & Donahue, Rice & Hill, and Chat-field & Hadley, should each have $10, costs of this motion.

S. Cromwell not having been represented on this motion, the plaintiff may take his motion as against him, without costs.