Montecarbole v. Mundel

16 How. Pr. 141

• Court: New York Supreme Court
• Decided: June 15, 1858
• Status: Published

Opinion

Mitchell, Justice.

The plaintiff should have tendered his reply with the $10 costs, at least before he noticed the cause for trial. Instead of that, he went to the circuit with the pleadings ready for trial, but without a reply, and the reply is since drawn and sworn to. He is in default, and should now pay the costs of the present circuit—the $10 before ordered, and the costs of the present motion, $10—and serve his reply in three days from notice of this order, and the adjustment of the costs. The cause may there remain on the calendar, but not to be tried at this circuit, without the consent of the defendant. Defendant may have leave to apply to postpone the trial still further. If he chooses to move to that effect, let the defendant enter and serve notice of the order.