Ex parte Sheldon v. Erie C. P.
New York Supreme Court
The relator was plaintiff‘in an action prosecuted in the Erie common pleas. The cause was referred, and the C. P. granted judgment as in case of .nonsuit against the plaintiff, for his neglect to bring the cause to a hearing before the referees. It was shown that the C. P., by general rule, had adopted the practice of this court in all cases not specially provided for by the rules of ■ that court.
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The relator was plaintiff‘in an action prosecuted in the Erie common pleas. The cause was referred, and the C. P. granted judgment as in case of .nonsuit against the plaintiff, for his neglect to bring the cause to a hearing before the referees. It was shown that the C. P., by general rule, had adopted the practice of this court in all cases not specially provided for by the rules of ■ that court. The relator insisted that the C. P. had erred in granting judgment as in case of nonsuit; that the defendant ought to have taken a rule authorizing him to notice the cause for a hearing.
1Opinion of the Court
By the Court,
Nelson, J.
The question here is whether judgment as in case of nonsuit can be granted in a cause which has been referred. The practice of this court is perfectly settled, that ordinarily it cannot be done. Where a term has intervened after the reference, and the plaintiff has neglected to bring the cause to a hearing, the defendant' may apply to the court for a rule that, unless the plaintiff notice the *269cause for a bearing within twenty days after notice of the rule, or discontinue upon the usual terms, the defendant have leave to notice the same for hearing, and then such…
2Cases cited1 opinion
- Champlin v. PetrieNew York Supreme Court · 1830
3Cited by2 opinions
- Holmes v. SlocumNew York Supreme Court · 1851
- Kimberly v. ParkerNew York Supreme Court · 1867