12 Wend. 191
Decided June 5, 1834
New York Supreme Court · decided 1834-06-05
The defendant served a plea, and the plaintiff neglecting to bring the cause to trial, a motion was made for judgment as in case of nonsuit. It appeared, that after the defendant had retained an attorney to defend the suit, but before service of notice of retainer, the plaintiff had entered a rule for discontinuance, and the plaintiff therefore insisted that the motion should be denied.
Good law ✅— No negative treatment on recordhow we know
Decided 1834-06-05
Cited by 6 later decisions — most recently June 1882
6 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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¶1By the Court,
¶2The discontinuance without payment of costs was a nullity. The defendant having, previous to the rule for discontinuance, incurred costs by the retainer of his attorney, the plaintiff, on discontinuing his cause, was bound to pay such costs. On receiving notice of retainer, he should have ascertained when the defendant’s attorney was employed, and if employed before the entry of the rule for discontinuance, he should have paid the defendant’s costs.
¶3Motion granted.