Van Wyck v. Reid

New York Supreme Court

Van Wyck v. Reid

10 How. Pr. 366

DecidedFebruary 15, 1855

StatusPublished

This text of 10 How. Pr. 366 (Van Wyck v. Reid) 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

Van Wyck v. Reid, 10 How. Pr. 366 (N.Y. Super. Ct. 1855).

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Opinion

Dean, Justice.

The defendant’s attorney, in his affidavit, says, positively, that no notice was ever received of the taxation, or adjustment of costs. The plaintiff’s attorney attempts to meet this by an affidavit, that he at some time, without mentioning on w'hat day, but more than four days prior to the time for the adjustment, served a notice by mail.

Such an affidavit is, in my judgment, wholly insufficient. The party entering the costs must show himself regular,—that he has given the notice,—or the clerk is not authorized to make the entry. And where the, costs have been inserted, and the attorney for the party against whom the costs are had, swears he has received no notice of adjustment, the attorney for the [367]*367other party must state time and manner of service, so that an indictment for perjury can he maintained against him, if not true. In this case, the costs amount to more than $100; and the attorney for the defendants, in his affidavit, says, all the items, except two or three, are such as could not be allowed. Some persons have such an extraordinary facility in making affidavits, that the only protection against them is, for the courts to require certainty and exactness in their statements of facts.

The motion is granted, with $10 costs.

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Dean, Justice.

The defendant’s attorney, in his affidavit, says, positively, that no notice was ever received of the taxation, or adjustment of costs. The plaintiff’s attorney attempts to meet this by an affidavit, that he at some time, without mentioning on w'hat day, but more than four days prior to the time for the adjustment, served a notice by mail.

Such an affidavit is, in my judgment, wholly insufficient. The party entering the costs must show himself regular,—that he has given the notice,—or the clerk is not authorized to make the entry. And where the, costs have been inserted, and the attorney for the party against whom the costs are had, swears he has received no notice of adjustment, the attorney for the [367]*367other party must state time and manner of service, so that an indictment for perjury can he maintained against him, if not true. In this case, the costs amount to more than $100; and the attorney for the defendants, in his affidavit, says, all the items, except two or three, are such as could not be allowed. Some persons have such an extraordinary facility in making affidavits, that the only protection against them is, for the courts to require certainty and exactness in their statements of facts.

The motion is granted, with $10 costs.

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Bluebook (online)

10 How. Pr. 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-wyck-v-reid-nysupct-1855.