Gildersleeve v. Halsey , 3 Sandf. 756 ( 1851 )

Oakley, Ch. J.

The plaintiff took an inquest against the defendant at the present term of this court, in consequence of no affidavit of merits having been filed, upon which he proceeded to enter up judgment and issue execution. The defendant gave notice of a motion to open the inquest, and also to set aside the judgment, on the ground of irregularity. The alleged irregularity was a failure on the part of the plaintiff’s attorney, at the time of serving the notice of the adjustment of costs, to serve a copy of the items which would be submitted for taxation. The notice given was, that he should apply to the clerk to insert the costs of the plaintiff in the judgment roll, and was unaccompanied by any statement of items. It is contended by the defendant’s attorney, that this is an irregularity which will authorise us to set aside the judgment.

It appeared by the affidavits, on the part of the plaintiff, that the defendant’s attorney appeared before the clerk upon the taxation, and successfully opposed some of the items, but this appearance seemed to have been under a protest upon his part, and we cannot deem it as a waiver of his right, to object to the irregularity, if any existed.

But we are of opinion, however, that the plaintiff was regular, and that the notice he served meets the requirements of the code. If upon the taxation, it should appear to the clerk, that it was proper to afford the opposing party time to investigate the items, it would undoubtedly be in his power to grant it. In the present case, it does not appear that there are any items which were improperly taxed, or that any objection is in fact made to the correctness of the taxation. It is undoubtedly advisable in all cases, that a statement of the items should accompany the notice of the application to the clerk. And for this reason, we shall direct a rule to be entered to that effect, in cases which may arise hereafter.

Motion denied.