Sabin & Kellogg v. Johnson & Mann

7 Cow. 420

• Court: New York Supreme Court
• Decided: August 15, 1827
• Status: Published

Opinion

Curia.

The plaintiffs were regular. Their proceedings were set aside, the defendants paying costs. No particular time being mentioned in the rule, it was the duty of the defendants to pay instanter, that is to say, within 24 hours. Under the circumstance, however, the defendants *may take their motion, on paying the taxed costs, with those upon this motion.

(a)

The same rule was held at this term in Miller v. Heath, (ante, 101.) The rale, as finally drawn up in that case, was that the defendafits have leave to withdaw the demurrer, on pleading and paying costs. The costs were paid in season; but the defendants did not plead, insisting that they had the usual time, 20 days. The plaintiff proceeded, and took judgment after executing a writ of inquiry; and this court would not set aside the proceedings except on payment of costs.

In all these cases, where costs are to he paid as a condition, and the attomeys reside at a distance from the place of motion, the safer course is to place the counsel who move, in funds to pay immediately. They should also he instructed as to any other probable conditions; as pleading instanter. Ti, ,, ... . , , „ , . . Jj these things be not done, the court sometimes, on suggestion, insert a reasonable time in the rule, provided it does not delay the cause*