Jacobs v. Hooker

1 Barb. 71

• Court: New York Supreme Court
• Decided: September 27, 1847
• Status: Published

Opinion

Edmonds, J.

That makes no difference. The risk of miscarriage falls upon him to whom the paper was directed. The rule says that such a service shall be a good one; and of necessity, therefore, the risk must be with the party to whom it is sent. Both judgments were irregular and must be set aside; but without costs. We allow no costs on motions, unless the motions are rendered necessary for the attainment of some substantial right in the cause; except sometimes we may allow them by way of punishment. My only doubt is whether I ought not to charge the defendant with the costs of setting aside his judgment. When he received the costs of the circuit after the stipulation, he knew why they were paid, and that was enough to put him on inquiry. He ought not, after that, to have perfected the judgment. I will allow the costs of the motion to set aside that judgment to abide the event. No other costs of these motions, either way, will be allowed.