Pitcher v. Clark

2 Wend. 631

• Court: New York Supreme Court
• Decided: August 15, 1829
• Status: Published

Opinion

By the Court, Marcy, J.

The notice being served on the agent, the service should regularly have been twenty-eight days. The only inquiry is, whether the service on the agent is regular. It is immaterial when the notice came to the hands of the attorney ; knowing that the service was insufficient on his agent, he had a right to avail himself of the defect in the service. The inquest must therefore be set aside, but without costs, for the reason that much irrelevant matter is incorporated in the affidavit on which the motion is founded. ■ The court will not require the taxing officer to dissect ' affidavits to determine what is pertinent; but whenever they are loaded with matter unnecessary to the correct determination of the question, and manifestly with a view of increasing costs against the opposite party, the court will invariably refuse to allow any .costs whatever of the motion, though it be successful.