Judson and others against Leach

*Judson and others against Leach. NEW YORK, May, 1827. A defendant who has aver-diet in the suco™t pveme court tíons m tioned in the first section of the statute of 34?,)’ whether the cause be from the 0. P. tute^says St a party shall recover costs, this means costs of the court where the suit is pending. Troyer, commenced m the O. P. whence the defendant • . , . , , 7 - - removed the cause into this court by habeas corpus; and obtained a verdict. On taxing his costs before Mr. Hubbard, clerk, the plaintiffs objected that they should be at common pleas rate only; but the objection was over-rt¿e(3 and full supreme court costs allowed. . A motion was now made m behalf of the plaintiffs for a retaxation; for whom were cited 1 R. L. 344, s. 4, 5; 17 John. 37. For the defendant were cited 1 B.L. 343, 3.1, 2, 4; 18 14 id-382- M. Talcott, for the motion, C. C. Bronson, contra, [MAJORITY — Curia.] Curia. The right of the defendant rests On the general provisions of the statute of costs, (1 R. L. 343, s. 2,) which gives cost to the defendant who succeeds, in all cases where, if it had been otherwise, the plaintiff might recover costs. This refers to the general provisions of the first section; and is co-extensive with them. The subsequent sections, limiting or denying costs in certain cases, do not apply to the defendant. When a statute declares that a party shall recover costs, it means the costs of the court where the action is pending, unless it be otherwise provided. The motion must be denied. Motion denied. (1) See New York Code of Procedure of 1851. Sects. 303, 304, 305, 306 307, 308, 309, 310, 311.