Roberts v. Warren

1 How. Pr. (n.s.) 524

Opinion

Merwin, J.

The question seems to be as to what costs the-defendant should pay as a condition to serving the supplemental answer. The claim of the defendant is that not more than $10 costs should be imposed. This is on the theory that section 3231 of the Code applies to this class of actions. It was so held in Quin agt. Bowe (4 Law B., 72; S. C., 10 Daly, 505).

This provision, or one similar to it in the old Code, section 30-1, has been in force since 1819, but no direct adjudication is cited except the above. The question was not up in Mitchell agt. Allen (25 Hun, 543), nor decided, in Abbott agt. Johnstown, &c., H. R. R. Co. (24 Hun, 135).

I am inclined to the opinion that the contention of the defendant’s counsel is correct and that section 3231 applies. The plaintiff, however, should have any taxable disbursements that he has incurred and that were not included in the other case, and should have leave to discontinue.

An order on this basis may be submitted