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Goodyear agt. Baird and others.

the amount of the recovery should be allowed. The amount of the recovery was $307.31. The entry in the minutes of the clerk upon the application for an extra allowance is as follows: “Court directs the plaintiff to take the extra allowance for costs allowed by statute.” On the same day, the plaintiff's attorney mailed at Schoharie a notice to the defendant's attorney, who resides in the county of Sullivan, that the costs would be adjusted on the 20th of May, by the clerk of Schoharie. The notice was too short to enable the defendant's attorney to appear upon the taxation. The costs were taxed at $74.21, which included $30.73 for extra allowance, and $34 allowed by the statute : also $3 for jury fees.

The defendant, Frazier, moved for a re-taxation.

R. C. Martin, for plaintiff.
Thomas Smith, for defendants.

HARRIS, Justice. The notice of taxation was technically regular. Yet, where, as in this case, the notice served upon an attorney residing at a distance is so short, that the attorney serving the notice has reason to believe that he will be unable to attend upon the taxation, he should not be held to be concluded by his failure to appear. The taxation should be reviewed in the same manner as if the attorney had, in fact, appeared and made all proper objections.

The principal objection made by the defendant to the costs as taxed, relates to the item for extra allowance. · The entry of the clerk leaves it uncertain what amount was allowed. It might be inferred, perhaps, from the language of the entry itself, that the court had directed that the allowance should be to the full extent authorized by statute. That such was, in fact, the direction, is made clear by the affidavit of the plaintiiï's attorney, who swears that the judge, at the circuit, directed an extra allowance of ten per cent. upon the amount of the recovery, and added, that such was his practice in all cases where the defendant allowed judgment to go against him by default.

Goodyear agt. Baird and others.

Were I at liberty to decide upon the propriety of the allowance, I could not hesitate to pronounce against it. I cannot suppose that the legislature ever intended that the courts should add ten per cent. indiscriminately to every judgment taken by inquest. It is not enough that an answer has been put in, which obliges the plaintiff to prove his case. The provision, of the statute looks to the mode of conducting the defence, rather than the defence itself. There is nothing necessarily unreasonable or unfair in the more denial of the plaintiff's allegations. The allowance which the court is authorized to make, is by way of compensation for the trouble and expense to which the plaintiff may have been subjected by reason of the unreasonable or unfair manner in which the defence may have been conducted. The idea of punishing the defendant for having denied what the plaintiff has been able to prove to be the truth, is not found in the provisions of the statute.

In an action like this, $22 are added to the taxable costs, as the consequence of interposing the answer denying the allegations of the complaint. Ordinarily, this sum is quite an adequate compensation for the trouble and expense of taking an inquest. It evidently was so in this case. To add to this an extra allowance of $30, and that, too, against a mere surety, would seem to be a perversion of the intent of the legislature in providing that an extra allowance may, in the discretion of the court, be awarded to a plaintiff, where a defence has been conducted unreasonably or unfairly. But in this case such an allowance was made, and though the entry by the clerk was informal, I am inclined to think it was sufficient to indicate the intention of the court. This being so, I have no power to reverse the order upon this motion. This, if indeed it could be done at all, could only have been done upon appeal from the order making the allowance.

The plaintiff has, perhaps, through inadvertence, taxed $5 too much for the fees allowed by statute. The taxable items amount to $29, instead of $34. I observe, too, among the items of disbursement, a charge of $3 for jury fees upon the inquest. The defendant, by failing to appear, waived a

Howard and Brown agt. Taylor.

trial by jury. In actions sounding in damages, the judge who presides sometimes prefers that they should be assessed by a jury, even when the defendant does not appear. But in a case like this there certainly was no necessity for a jury. The practice ought not to be encouraged. I shall, therefore, direct that this item be disallowed to the plaintiff. I do it the more willingly, because the costs, including the extra allowance, are, under the circumstances, oppressively large.

An order must be entered directing that eight dollars be deducted from the costs as taxed: neither party to have costs upon this motion.


J. H. Howard and Chas. Brown agt. TAYLOR.

When, pendente lite, in an action on contract, the plaintiffs sell and assign the

subject matter of the action to a third person, he will not be substituted as plaintiff, on motion of the plaintiffs to the record, and without notice to him. The alleged purchaser is the person to move for substitution; and he should do so, on notice to the plaintiffs, as well as to the defendant. Even in such a case, it is not a matter of course, to order a substitution, without imposing any conditions.

At Chambers, Oct. 6, 1855. On an affidavit of C. Brown, that this action is on contract, to recover $314, is at issue, that plaintiffs have assigned their interest in the subject matter of the action to John C. Brown, and that the affiant, C. Brown, is desirous the latter should be substituted as plaintiff in this action; the plaintiffs, on a notice from their attorney to the defendant, and to him only, move for an order making such substitution. This is opposed, on the ground that the pretended purchaser is the proper party to make the motion.

M. K. BURKE, for plaintiffs.
H. W. Johnson, for defendant.

Howard and Brown agt. Taylor.

Bosworth, Justice. This motion is made under $ 121 of the Code. No notice of it has been given to John C. Brown, and the motion is not made by him, nor on his behalf. He has not had a chance to be heard. He may deny that he has bought the right of action. If the motion was granted, a third person might be made plaintiff in the action, not only without his knowledge, but against his will. If he claims to have purchased the subject matter of the action, he should move to be substituted, if he wishes to be made plaintiff upon the record, and should move on notice to the plaintiffs as well as to the defendants.

But if he should move for such a substitution, and it should be apparent that the main motive for the change was the present plaintiff's witnesses, the court might impose, as a condition, that he stipulate not to call them as witnesses. (6 Howard, Pr. R. 220.)

In the case of such a change of interests, pendente lite, it is discretionary with the court to allow, or refuse to allow, a substitution of the purchaser as plaintiff. Where a substitution cannot prejudice any right or remedy of the defendant, it would be almost a matter of course to permit it. When such a result would be produced by the change, the court would either refuse to permit it, or would grant it only on such terms as would protect the defendant from injury.

Deming agt. Chapman.



In an action brought to compel the defendant to keep secret a certain invention,

in pursuance of a written agreement between the parties, an injunction, restraining the defendant from divulging or teaching the secret, art, and invention of such matter, is not the proper remedy, especially where the defendant denies that he has divulged the thing mentioned in the agreement, but some

thing else. Because the moment the investigation as to the identity takes place, the secret vanishes its exclusiveness is gone, and with it the action itself. And besides, the patent laws provide that inventions shall be secured for a certain time, and in a certain manner; and this jurisdiction is confided to the Gen

eral Government, not to the state courts. An action for damages is probably the only redress the plaintiff has in such


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ROOSEVELT, Justice. The object of this suit-a somewhat novel object, it would seem-is to compel the defendant to keep a secret. On the 1st of July last, one of my colleagues, deeming the case made by the plaintiff to be prima facie sufficient, issued a temporary injunction to restrain the defendant “ from divulging or teaching the secret, art, and invention of marbleizing iron, slate, and other articles,” according to the method which the plaintiff had taught him, and which, under the solemnity of an oath, he had stipulated by writing, in the form of an affidavit, sworn 4th March, 1852, “not at any time thereafter to make known, discover, or in any manner impart or communicate to any person, except Egbert Deming,” the plaintiff. An order was at the same time made, requiring the defendant to show cause why the injunction, so granted, should not be continued till the final hearing.

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