People ex rel. Marsh v. Genesee C. P.

4 Wend. 202

Opinion

By the Court,

Sutherland, J.

The appeal ought not to have been quashed; the relator did all that he could do, to comply with the requirements of the statute ; he paid all that was demanded of him. It is no cause for quashing an appeal that a justice takes less costs than he is entitled to receive, when a party is willing, and offers to pay all that can be required of him, and in fact pays all that is demanded. This case is very different from those reported in 6 Cowen, 61, and 1 Wendell, 282. In the case in Cowen there was no payment of the costs, the justice being simply directed to charge the costs to the party; and in the other the party refused to pay part of the costs, on a claim of being himself entitled to a portion of them. Let an alternative mandamus issue.