Simpson v. Brewster

9 Paige Ch. 245 | New York Court of Chancery | 1841

The Chancellor.

The defendant’s solicitors have mistaken the remedy in this case to procure the payment of the costs of the former suit. The complainant may unquestionably dismiss his bill at any time before decree, upon payment of costs. (2 Daniel’s Ch. Pr. 355; Bossard v. Lester,2 M’Cord’s Ch. Rep. 419.) And the court will grant the motion as a matter of course, upon a proper application. The order in such cases is that the bill be dismissed, upon payment of the costs of the defendant to be taxed ; or that the complainant have leave to dismiss his bill, upon the payment of costs. But in neither case is the suit out of court until the costs are actually paid, or at least until they have been tendered to the defendant’s solicitor. Neither can such costs be offset without the special permission of the court for that purpose. The proper remedy of the defendant, therefore, in case the complainant neglects or refuses to pay the costs after they have been taxed and demanded, is to proceed as for a contempt. Or lie may consider the suit as still pending and proceed accordingly. And if the complainant files a new bill for the same cause of action, without paying the costs in pursuance of the conditional order to dismiss upon payment of costs, the defendant may plead the pendency of the first suit, as a bar to the commencement of the second before the order to discontinue had become absolute, by the payment of the costs.

Again ; the defendant shows, in this case, that he has no interest in this application in its present form, as he has made an absolute assignment of the costs of the former suit to his solicitor. And it does not appear that he has guaranteed the collection thereof. The motion must, therefore, he denied; and the defendant must be left to set up the pendency of the original suit, either by his plea or answer.