General
Lown against Roose
6 Cow. 394·New York Supreme Court·1826·NY
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Opinion
Lown against Roose.
ALBANY,
Oct. 1826.
for°n «judg* mentasincase less theUp]aín-tiff shall stipu-costs,”11 stipulate stanter, or at ^TdaystTr the derfectantmhis judgment mantling costs!
May term, on the 26iA of May last, a rule was moved for, and taken against the plaintiff, for “judgment as *n case nonsuit, unless the plaintiff shall stipulate and pay costs.” But no stipulation was served by the defendant’s attorney till the 16/A of June thereafter,
defendant’s attorney having taken judgment as in case of nonsuit against the plaintiff,
A- motion was now made, in behalf of the plaintiff, to se^ ^ as^e > and one question was, whether the stipulation was in sufficient season to comply with the rule. No demand of the costs by the defendant’s attorney had been made.
J. W. Wheeler, for the motion.
«71 L. Wendell and G. A. Shufeldl, contra.
[MAJORITY — Curia.]
Curia.
The obligation to demand costs on the rule nisi, for judgment as in case of nonsuit, does not attach till a stipulation be actually given. Here was a delay of more than 20 days to give the stipulation. On a rule of this kind, the stipulation must be given, at least, within 20 days from the rule; and we think instanter; or the defendant may proceed and perfect his judgment of nonsuit. The motion must be denied.
Motion denied.