Jackson ex dem. Sutherland v. Stiles

5 Cow. 418 | N.Y. Sup. Ct. | 1826

Curia.

Sutherland has a right to have his name stricken ^Iom the proceedings, on paying his proportion of the costs to the attorney for the plaintiff. A lessor in ejectment may discontinue in this at of the where the rights of the defendant to costs are not affected; or he consents, as here, that it may be done ; although such lessor may have originally retained the attorney who brings the suit. It does not, in general, lie with his co-lessors to object.

There is no ground for setting aside the default and subsequent proceedings. Though the rales may not have been aptly or fully drawn; yet, looking to the nature and purpose of the action, and the times at which they were entered, their meaning cannotbe mistaken. Inserting the Avord judgment in the rule for the default, will not vitiate it, or alter the legal effect. The Avord may be rejected as surplusage.

Upon the same principle the Avords, “ against the casual ejector” may be supplied in the final rule, Avhich order's judgment generally Avithout saying against xvhom.

But the plaintiff has taken possession beyond Iris right.

The execution of the xvrit of possession was imqualiiied; though, as appears fully from the papers, the right to three-sixths of the premises in question was extinguished. Let the defendant be restored to so much. No costs are allowed on either side.

Rule accordingly.