¶1Denied the motion without costs, on the ground that the Defendant’s attorneys had stipulated to admitthe Plaintiff’s cause of action as to all items, except the execution and delivery of the promissory note declared on, and to strike out Defendant’s notice of set-off. Had the Defendant’s stipulation been served or offered before the motion papers were served, the motion would have been denied with costs.
3 How. Pr. 12
Mullin v. Kelly
Decided December 15, 1846
New York Supreme Court · decided 1846-12-15
Where Plaintiff moved for a reference in an action of assumpsit, his bill of particulars containing four items, including a promissory note—and after motion papers served, Defendant’s attorneys… Held: that the stipulation was sufficient to preclude the Plaintiff a reference, without costs of the motion; costs would have been given Defendant, if his offer to stipulate had been made before the motion papers were served.
Decided 1846-12-15