Toohey v. Lowell

Adams, Ch. J.

The motion was based upon the ground that the plaintiff’s demand consisted of more than one item, and he recovered upon only a portion of his demand, and upon the further ground that the plaintiff made unnecessary costs. What the ruling should have beén if there had been no counter-claim we need not determine. It seems probable that a part of the costs were made upon the counter-claim, upon which, as we understand, it is conceded that the defendant failed. What costs were made upon the counter-claim the record does not disclose. Nor are we able to determine to what extent, if any, the plaintiff made unnecessary costs. We must presume that the motion to retax was rightly overruled, until it is shown affirmatively otherwise. It is not, we think, so shown, and the judgment is

Aeeirmed.