Smith v. Randall

New York Supreme Court

Smith v. Randall

67 Barb. 377

DecidedJanuary 15, 1872

StatusPublished

This text of 67 Barb. 377 (Smith v. Randall) 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

Smith v. Randall, 67 Barb. 377 (N.Y. Super. Ct. 1872).

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Opinion

Hardih, J.

The defendant opposes this motion, on the ground that no order was necessary to enable, the plaintiff to recover costs.

This question has been discussed in several cases ; and it is now quite well settled that an application must be made to the court, and that the referee has no power to pass upon such question. (9 Barb., 388. 12 How. Pr., 301, 353. 14 id., 481. 23 id., 137. 4 Ab., N.S., 399.)

I am aware that some cases are to be found, construing section 317 of the Code in such a manner as to render a motion necessary only in cases where it is sought to charge the costs upon the executor &c. personally; but more recent cases' are to the effect that the correct practice is to move for an order, in cases situated like this one. And following these cases, it must be considered that the plaintiff has followed the correct practice ; and his motion must be granted. (Howe v. Lloyd, 2 Lans., 335. Pish v. Crane, 9 Ab., N.S., 252.)

This motion is therefore granted; but as the question has recently been opeh to- discussion, no costs of motion are allowed.'

Ordered accordingly.

Hardin, J.]

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Hardih, J.

The defendant opposes this motion, on the ground that no order was necessary to enable, the plaintiff to recover costs.

This question has been discussed in several cases ; and it is now quite well settled that an application must be made to the court, and that the referee has no power to pass upon such question. (9 Barb., 388. 12 How. Pr., 301, 353. 14 id., 481. 23 id., 137. 4 Ab., N.S., 399.)

I am aware that some cases are to be found, construing section 317 of the Code in such a manner as to render a motion necessary only in cases where it is sought to charge the costs upon the executor &c. personally; but more recent cases' are to the effect that the correct practice is to move for an order, in cases situated like this one. And following these cases, it must be considered that the plaintiff has followed the correct practice ; and his motion must be granted. (Howe v. Lloyd, 2 Lans., 335. Pish v. Crane, 9 Ab., N.S., 252.)

This motion is therefore granted; but as the question has recently been opeh to- discussion, no costs of motion are allowed.'

Ordered accordingly.

Hardin, J.]

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67 Barb. 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-randall-nysupct-1872.

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