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.