Mix v. Brisban

2 Wend. 286

Opinion

By the Court, Marcy, J.

The plaintiff was entitled to the costs of the circuit in 1838, but he should have applied for them at the next term after the circuit. Having omitted to do so, he must now be content to have them abide the event of the' suit As to the last April circuit, he can demand only the costs of the first day. For aught that appears, on the second day the defendant may have been ready for trial. At all events, the cause was not tried after the first day, by reason of the indisposition of the judge. The plaintiff may take a rule for the costs of the first day of the circuit, but no costs are .allowed to either party on this motion.