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6 Hill & Den. 268

Anonymous

New York Supreme Court

Decided December 15, 1843

New York Supreme Court · decided 1843-12-15

<p>Tn an action against three for a tort, the declaration contained two counts, to which respectively the defendants each pleaded seven pleas, and at the trial the plaintiff was nonsuited. Held, that the defendants’ attorney was entitled to charge in his bill of costs for six pleas, i. e. two for each defendant.</p> <p>In general, where a party moving for re-taxation claims costs of the motion in his notice, he will be compelled to pay costs, though a re-taxation be ordered. .</p>

Decided 1843-12-15

By the Court, Bronson, J.

¶1In actions for torts it is sometimes very proper for the defendants to plead separately, although they appear by the same attorney; and there are some defences which cannot be pleaded to the whole declaration, but only to a single count. Under the act of 1840 there can be no allowance for more than one plea or answer to the same previous pleading. But that does not touch the case of one plea to one count, and another plea to another count. Each of these defendants might charge for two pleas, making six in all.(a) The remaining fifteen were improperly allowed, and must be struck out of the bill. But the plaintiff must pay the costs of opposing the motion, because he improperly asked costs in his notice, and would have taken a rule for costs of course if the defendants had not appeared to oppose it.(b)

¶2Ordered accordingly.

¶3 See The Albany and West Stockbridge Rail-Road Company v. Cady and Cady, (ante, p. 265;) Tenbroeck and wife v. Paige and Finch, (ante, p. 267.)

¶4 The same doctrine is applicable, it seems, to motions to change venue. (See 4 Hill, 70,note.)
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