Hoffman v. Tredwell

5 Paige Ch. 82 | New York Court of Chancery | 1835

The Chancellor.

In this case the defendants who appeared by Mr. Silliman, had obtained a regular decree for the dismissal of the bill, as to them, for want of prosecution. And by the decision of the court that decree was to stand, unless the complainant thought proper to vacate the same, by complying with the terms imposed upon her by the court, on the sixth of August. One of those terms was, that she should pay certain costs within twenty days. And if the order was not drawn up and entered as of that date, it should, if subsequently entered, have directed the costs to be paid within 20 days after the sixth of August. It was the business of the complainant to cause the order to be drawn up and entered ; and to seek the solicitor of the adverse party, and offer to pay the costs, as soon as they could be made out and ascertained, by taxation or otherwise, if she wished to have the benefit of her application. It would, therefore, have been sufficient for the solicitor of the defendants, in order to entitle himself to proceed upon the order of dismissal, to have made an affidavit, stating the terms upon which it was to have been vacated by the decision of the court, and that the complainant had neglected to enter any order upon such decision, or to comply with the terms imposed. The complainant has sustained no injury by the entry of the order as of the day when it should have been entered by her solicitor ; and the proceedings of the solicitor for the defendants are regular.

But as the complainant is alleged to be poor, I do not think it, proper to subject" her to the unnecessary expense of a new suit, for the mistake of her solicitor. If the costs directed to be paid by the order of the 6th of August, and which have already been taxed and demanded of the solicitor, are paid within twenty days from the time of pronouncing this decision, and if all subsequent costs, including the costs of resisting this application, are paid within ten days after service of a taxed bill thereof on her, or her solicitor, the order dismissing the hill, and the enrolment of that order, are to be vacated- and set aside; and the suit is to proceed against the surviving defendants. But if these terms are not complied with by the complainant, the suit may be revived as to the personal representative of John Tredwell, upon a proper application for that purpose; and an execution may be taken out for the cqsts upon the decree or order for dismissal. The complainant, in that case, is also to pay to the solicitor of the three surviving defendants as to whom the bill was dismissed, the costs of opposing the present application.