Henderson v. Jackson

2 Sweeny 603 | The Superior Court of New York City | 1870

Lead Opinion

By the Court:

Freedman, J.

I am inclined to think that plaintiff had a right to issue a precept for the costs of the appeal only. The rule laid down in Mora v. Sun Mutual Insurance Company (13 Abb., 304; 22 How., 60), and Palmer v. Smedley (13 Abb., 185), in relation to costs of demurrer, does not apply to the costs on appeal from an order overruling a demurrer. It appears, however, that on the motion to set aside the precept there was a conflict of evidence as to the contents and terms of the precept. The affidavit of defendant’s attorney states distinctly that the costs, both at Special and General Term, were taxed and adjusted, and that the precept was issued for the costs so adjusted. This statement was denied,by plaintiff’s attorney, but neither the precept, nor a copy, was submitted.- • Upon an appeal every presumption is ■ in favor of the correctness of the order appealed from, and as the judge below may have believed the assertions of defendant’s attorney in preference to those made by the attorney for the plaintiff, his decision of the motion upon the disputed question of fact involved therein cannot be held erroneous.

The order should be affirmed, with ten dollars costs.

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Concurrence Opinion

Monell, J.

(concurring). As another illustration of the necessity of having the precept before us that we may see what it was, it is stated in the affidavit of the defendant’s attorney that it was a “ precept or process against the defendant.” That is not denied, and for aught we know, it may have been an execution against thb person of the defendant.

The plaintiff must not complain of the result of this appeal, as he could easily have had all the necessary facts and papers before the court.

I concur in affirming the order.