Underwood v. Brower

12 Wend. 267

Opinion

By the Court,

Nelson,. J.

The defendant must pay the costs of the inquest and of the subsequent proceedings had in the suit, including the costs of opposing this motion. Should the defendant succeed in the suit, the costs now accrued might be set off against those to which he would in that case be entitled ; but if the plaintiff should succeed, unless the costs now .accrued through the default of the defendant are paid, the plaintiff may be subjected to the whole expense of an issue and trial, and the defendant not be able to remunerate him. All the costs therefore which have accrued from the entry of the default to this day must be paid, or the defendant cannot have the benefit of his motion.