Lyme v. . Ward

New York Court of Appeals

Lyme v. . Ward

1 N.Y. 531, 3 How. Pr. 342

CourtNew York Court of Appeals

DecidedNovember 5, 1848

StatusPublished

Cited by1 cases

This text of 1 N.Y. 531 (Lyme v. . Ward) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lyme v. . Ward, 1 N.Y. 531, 3 How. Pr. 342 (N.Y. 1848).

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Opinion

Bronson, J.

The plaintiff in error was irregular in serving an assignment of errors before one had been filed: (Rule 4.) and the orders precluding the defendant from joining in error, and reversing the judgment, were therefore unauthorized. We are also of opinion, that the remittitur should not have been sent to the court below until the expiration often days from the reversal of the judgment. (Rule 20.)

As the defendant in error has been obliged to come here at considerable expense to get rid of an irregular proceeding, he ought to have costs on the motion, if we have any authority to give them. The 270th section of the code of procedure forbids the allowance of costs to the party who makes a motion. But originally, that section did not apply to this suit, which was commenced before the first of July. (Code, § 8,391.) And although it has since been applied to proceedings in such suits subsequent to the first of July in certain specified courts, this court is not among the number. (Supp. Code, § 2.) We, *533 therefore, have power to allow costs. The amount must be settled by taxation. The statute authorizing the supreme court to make rules regulating the amount‘of costs on special motions does not apply to this court. (Stat. 1840, pp. 333, 336, §§15, 39: Stat. 1847, p. 321, § 8.) If the suit had been commenced since the first of July, the defendant in error would have been obliged to bear the expense of getting rid of the irregular r - feedings of his adversary.

Motion granted, with costs to be taxed.

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Bronson, J.

The plaintiff in error was irregular in serving an assignment of errors before one had been filed: (Rule 4.) and the orders precluding the defendant from joining in error, and reversing the judgment, were therefore unauthorized. We are also of opinion, that the remittitur should not have been sent to the court below until the expiration often days from the reversal of the judgment. (Rule 20.)

As the defendant in error has been obliged to come here at considerable expense to get rid of an irregular proceeding, he ought to have costs on the motion, if we have any authority to give them. The 270th section of the code of procedure forbids the allowance of costs to the party who makes a motion. But originally, that section did not apply to this suit, which was commenced before the first of July. (Code, § 8,391.) And although it has since been applied to proceedings in such suits subsequent to the first of July in certain specified courts, this court is not among the number. (Supp. Code, § 2.) We, *533 therefore, have power to allow costs. The amount must be settled by taxation. The statute authorizing the supreme court to make rules regulating the amount‘of costs on special motions does not apply to this court. (Stat. 1840, pp. 333, 336, §§15, 39: Stat. 1847, p. 321, § 8.) If the suit had been commenced since the first of July, the defendant in error would have been obliged to bear the expense of getting rid of the irregular r - feedings of his adversary.

Motion granted, with costs to be taxed.

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1 N.Y. 531, 3 How. Pr. 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyme-v-ward-ny-1848.

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