Smith v. Howard

Decided August 7, 1834

New York Supreme Court · decided 1834-08-07

The question in this case was, whether a plaintiff who has obtained an inquest at the circuit is bound to waive it, on being offered the costs and presented with an excuse verified by affidavit; and if he refuses to do so, whether he is chargeable with costs of motion.

Decided 1834-08-07

¶1By the Court,

Nelson, J.

¶2A plaintiff who has regularly obtained an inquest is not bound to waive it on the applica*199tion of the defendant, let the excuse be what it may; but may put the defendant to his motion, who, if relieved, instead of receiving, must pay costs.