Hart v. Philips
New York Court of Chancery
This was an application to dismiss the complainant’s bill for want of prosecution. The defendant Philips, in whose behalf the application was made, had pleaded the pendency of a former suit, and had obtained the master’s report thereon ; but neither party had set down the cause for hearing upon the plea and master’s report.
1Opinion of the Court
The Chancellor.
The defendant is not entitled to dismiss the complainant’s bill in such a case as this for want of prosecution. Where the defendant pleads a former decree, or another suit pending for the same cause, or other matter of record in the same court, the reference to the master to enquire and report as to the truth of the plea is a mere preliminary proceeding. And when the report is in favor of the truth of the plea, no further proceedings can be had thereon by either party until the plea has been argued and disposed of in the usual form. If the defendant wishes to expedite the…
2Cited by1 opinion
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