Kirby v. Sisson

1 Wend. 83 | N.Y. Sup. Ct. | 1828

By the Court,

Woodworth, J.

This motion is opposed, because it is said the plaintiff ought to have sought his remedy in a different mode : that he ought to have insisted on immediate payment or proceeded in the trial; to have awaited the event of the suit, and taxed the costs in the general bill, or served the defendant with a copy of the rule at nisi prius, and a copy of the taxed bill, and on demand and nonpayment, to have applied for an attachment in the first instance. The two first courses undoubtedly might have been pursued; so, also, the latter might have been adopted, if a rule had been entered; but yet this application is proper, if the party thinks fit to pursue it; the rule for costs may or may not have been entered ; and if the plaintiff chooses to ask for an order of this court for the payment of those costs, he is entitled to if. The motion is granted, with costs.