
    SUPREME COURT.
    Brokaw and Halsted agt. Bridgman.
    Where notice of motion for a commission is served by defendant without unnecessary delay, and before notice of trial served by plaintiff, the defendant will not be charged with plaintiff’s costs of preparing for trial.
    But if his motion papers are served after notice of trial or unnecessary delay, he must offer to pay the plaintiff’s costs up to that time, or he will be charged, on the motion, with the whole of plaintiff’s costs of preparing for trial.
    
      Steuben Circuit and Special Term, May 1850.
    Motion by defendant for a commission to examine a witness in Wisconsin.
    
      Issue was joined on the 18th April last. Notice of the motion was served on the 6th inst; afterwards the plaintiffs noticed the cause for trial at the present circuit, and the cause is upon the calendar of the present term.
    F. R. E. Cornwell, for Defendant.
    
    F. C. Dinniny, For. Plaintiffs.
    
   Welles, Justice.—The

The papers on the part of the defendant appear to be regular, and the commission should go. The only question is whether the defendant should pay the plaintiffs’ costs of noticing the cause for trial and preparing for the present circuit. The practice appears to have been settled before the Code, that where the defendant intends to sue out a commission, he must give notice of it before he receives notice of trial, or within a reasonable time after issue is joined, according to the circumstances of the case, and in that case such notice will stay the proceedings. If he waits till he receives notice of trial before he gives notice of the motion, he must pay the plaintiffs costs up to the time of the notice of the motion, and must pay, or offer to pay them then, 'or he will have the whole costs of preparing for trial to pay, unless it appear that he has served his papers for the motion without unnecessary delay; in which case he will be excused from the payment of any costs (Ives vs. Jones, 1 Wend. R. 283; 1 J. C. 391; Gra. Pr. 1 ed. 485; 2d ed. 594).

I am not able to perceive any reason why the practice should not remain the same under the Code. There is nothing there in conflict with the rule.

In the present case the notice of trial was not given until after the notice of the motion was served, and there is no complaint of any unnecessary delay on the part of the defendant.

- The motion is granted without the payment of any costs.  