O'Beirne v. Kelly

New York Supreme Court

O'Beirne v. Kelly

68 Misc. 134, 124 N.Y.S. 948

DecidedJune 15, 1910

StatusPublished

This text of 68 Misc. 134 (O'Beirne v. Kelly) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Beirne v. Kelly, 68 Misc. 134, 124 N.Y.S. 948 (N.Y. Super. Ct. 1910).

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Opinion

Erlanger, J.

When this cause was before me for trial, and before any proof was taken, the defendant moved to dismiss the complaint. Leave was thereupon granted to withdraw a juror upon payment of thirty dollars in order to allow the plaintiff to move at Special Term to serve an amended complaint. These costs have since been paid. The defendant insists that the terms to be imposed as a condition of granting the amendment are costs to date. This seems to be the rule in this department. Palazzo v. Degnon-MacLean Const. Co., 115 App. Div. 172; Kerrigan v. Peters, 108 id. 292. I do not think, however, that it was intended by these and kindred cases to deprive the court of all discretion, and that such terms were to be imposed at all events in every case. But $375 is sought to be recovered from the defendant, and the costs to date would be nearly twenty-five per cent, of the total claim. In my view this would not only be a hardship, but an injustice as well. After all, the law should not exact too great a penalty as & condition of granting justice, and in the circumstances, in view of the amount already paid, I think ten dollars costs of motion should suffice. Motion granted upon the payment of such costs.

Settle order on notice.

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Erlanger, J.

When this cause was before me for trial, and before any proof was taken, the defendant moved to dismiss the complaint. Leave was thereupon granted to withdraw a juror upon payment of thirty dollars in order to allow the plaintiff to move at Special Term to serve an amended complaint. These costs have since been paid. The defendant insists that the terms to be imposed as a condition of granting the amendment are costs to date. This seems to be the rule in this department. Palazzo v. Degnon-MacLean Const. Co., 115 App. Div. 172; Kerrigan v. Peters, 108 id. 292. I do not think, however, that it was intended by these and kindred cases to deprive the court of all discretion, and that such terms were to be imposed at all events in every case. But $375 is sought to be recovered from the defendant, and the costs to date would be nearly twenty-five per cent, of the total claim. In my view this would not only be a hardship, but an injustice as well. After all, the law should not exact too great a penalty as & condition of granting justice, and in the circumstances, in view of the amount already paid, I think ten dollars costs of motion should suffice. Motion granted upon the payment of such costs.

Settle order on notice.

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Bluebook (online)

68 Misc. 134, 124 N.Y.S. 948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obeirne-v-kelly-nysupct-1910.

Opinion

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