Jackson ex dem. Runno v. Stiles

1 Cow. 166

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Curia.

By the English practice, the tenant may rule the nominal plaintiff to reply to his plea, where the lessor has refused to join in the consent rule; and so non pros him. But the tenant there gets no costs. We are happy to find that a different, and more reasonable practice has long prevailed in this Court.

(b) The lessors must pay the costs of this application and join in the consent rule within twenty days after service of a copy of the rule ; in default whereof, the tenant may enter judgment of non pros. On being non pressed, the lessors must pay him the costs of his defence.

The Court, accordingly, directed the following rule to be entered:

John Stiles, Cornelius Be Hart, tenant,'J ^ August

James Jackson, ex dem. John A. Run- )* 1823.

no, Phebe Runno, Ebenezer Ramsay, I m o a

m o a and Francis Kelly. ) T‘ S?enCCr’ Att

On reading and filing affidavits, and notice of motion; and on argument of Mr. Platt for the tenant, and Mr. Kellogg for the plaintiff—Ordered, That the lessors of the plaintiff pay to the tenant the costs of this application, within twenty days after service of a copy of this rule on them respectively: And that the lessors of the plaintiff enter into the consent rule, within twenty days after a service of a copy of this rale on the attorney of the plaintiff; and that, on default to enter into such consent rule, judgment of non pros be entered ; and that the said lessors of the plaintiff, upon such nonpros being entered, pay to the tenant the costs, on the part of the defendant, to be taxed.

Two years afterwards, the English C. B. manifested some dissatisfaction with the rule in Goodright, ex dem. Ward, v. Badtitle ; and where the lessor had brought two ejectments, in which he had refused to join in the consent rule, and now had brought a third; on a rule to shew cause why all the plaintiff’s proceedings should not stay, till the costs of the two first were paid, the Court said, “whatever foundation there might be for practice» which exempted a lessor from costs for not joining in the consent rule, ye(, when the Court sees manifest vexation and oppression, as in the present case, it will exercise its jurisdiction over this fictitious proceeding, to prevent itand they made the rule absolute., (Ginger v. Barnardiston, 2 Bl. Rep. 904.)