1 Cow. 429
Decided October 15, 1823
New York Supreme Court · decided 1823-10-15
The plaintiff'had noticed this cause for trial, and six days before the Circuit, he countermanded the notice, and the defendant’s attorney then told him that no subpoenas had been issued, because his client told him he had no witnesses to subpoena. After the Circuit, and before notice of a motion for judgment, as in case of nonsuit, the plaintiff’s attorney tendered to the defendant’s a stipulation to try at the next Circuit, hut did not offer to pay any costs.
Decided 1823-10-15
¶1No subpoenas issued and no witnesses to subpoena, do not necessarily imply that no costs had accrued. There might have been the costs of a brief for the trial and of preparing papers for this very motion, which should have been tendered.
¶2Sutherland, J. dissented. He thought, that under the circumstances, the party applying should have shewn affirmatively, that costs had, in fact, accrued.
¶3Motion granted.