Hart v. Wood

6 Wend. 558

Opinion

By the Court,

Sutherland, J.

The defendant is entitled to a rule for costs. He cannot move alone for judgment as in case of nonsuit, there being other defendants; but it is right that he should have his costs for attending at the circuit. When this motion was made at a previous day, we held that where there are several defendants, and only one of them asks for costs against the plaintiff, for not proceeding to trial pursuant to notice, that the motion ought not to be granted, unless the party had obtained the assent of his co-defendants for him to apply to the court separately, or they had refused to unite with him in the application. The defendant now having obtained the required assent, no objection is perceived to granting the motion.

Motion granted.