Legal Opinion

M'Gregor v. Cleveland

New York Supreme Court

Decided December 15, 1833PublishedCited by 1 opinion

This was an action of assumpsit; one of the defendants suffered a default in not pleading; the two others pleaded to issue; the plaintiffs had a verdict, 'which was subsequently set aside and a new trial ordered. Since when, no proceedings being had, the defendants who pleaded moved for judgment as in case of nonsuit.

1Opinion of the Court

By the Court,

Sutherland, J.

In Bates v. Lansing and others, 8 Johns. R. 289, it was decided that in a case circumstanced like this, judgment as in case of nonsuit for the neglect of the plaintiff to bring his cause to trial could not be rendered. That was an action of trespass, and it was urged on the motion, that this being assumpsit, there is a distinction; but by reference to the cases in the books, it will be seen that the same rule prevails in assumpsit as in trespass, 1 Burr. 357,3 T„ R. 662, recognized in 4 Wendell, 432. The principle of these cases is, that as the statute only…

2Cases cited1 opinion

  1. Beaman v. BlanchardNew York Supreme Court · 1830

3Cited by1 opinion

  1. Brotherton v. WrightNew York Supreme Court · 1836

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