3 Abb. Pr. 462 | New York Court of Common Pleas | 1856
Under the old system, and prior to the decision in Smith v. White, (7 Hill, 520), it was well settled that the
There is no analogy between these statutes. The present statute, (Code § 304), provides as follows :—“ Costs shall be allowed of course to the plaintiff upon a recovery in the following cases,” &c. And by section 305 further provides as follows:—“Costs shall be allowed of course to the defendant in the actions mentioned in the last section, unless the plaintiff he entitled to costs therein.”
The plaintiff is not entitled to any costs on his own discontinuance of the action, and not in any other case except upon a recovery. There is nothing in the statute on the subject of the defendant’s appearance; on the contrary, section 305, already referred to, is peremptory in language—“ costs shall be allowed,” &c.—and contemplates, I think, costs to the defendant in all cases in which he has been served with process, and in which the plaintiff does not recover, excepting, however, the cases mentioned or referred to in section 306, in which this action is not embraced.
I think, therefore, that the defendant is entitled to costs, although the action be discontinued before his appearance is entered or perfected, provided, however, that said discontinu
Ordered judgment with ten dollars costs of this motion, unless the plaintiff, within five days after service of this order, pays five dollars costs of discontinuance and five dollars costs of this motion, in which case the order of discontinuance entered by plaintiff is to stand as if made on application and on payment of costs.