Kimberly v. Parker
New York Supreme Court
This action has been referred to a referee; and on or about the eighth day of August, 1866, the plaintiff’s attorney served a notice of trial by mail upon the defendant’s attorney, giving notice that it would be brought to trial before the referee, at Batavia, on the twenty-third of that month.
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This action has been referred to a referee; and on or about the eighth day of August, 1866, the plaintiff’s attorney served a notice of trial by mail upon the defendant’s attorney, giving notice that it would be brought to trial before the referee, at Batavia, on the twenty-third of that month. The defendant appeared with his witnesses, at that time, at Bataviaj but the referee did not appear, and had not been requested to appear by the plaintiff or his attorney, to hear the cause, and no hearing or trial was had. The defendant moved * for judgment at the special term, held in Allegany…
1Opinion of the Court
Daniels, Justice.
The motion made in this case is what would have been known under the system of practice which prevailed before the Code, as a motion or j udgment, as in a case of nonsuit. The cases in which such motions could be made, the facts which warranted them, and the terms upon which they were usually disposed of, were clearly defined and settled by that practice. (1 Burrill's Practice, 420, 422.) And that practice is still continued under the present revision of the rules, by rule 27. But this practice, as well as the rule referred to, govern the disposition of only such causes as…
2Cases cited1 opinion
- Ex parte Sheldon v. Erie C. P.New York Supreme Court · 1835