Van Bergen v. Palmer
New York Supreme Court
DQWER: On the first day of th>e last term, the demandant was called; and again, on the quarto die post, and a day was given for her to appear and prosecute her claim on the last day of the term; and the demandant not appearing on that day, her default was entered, and a judgment of nonsuit entered thereon. now moved to set aside the default, and subsequent proceedings, and read affidavits. . that the demandant was regularly out of Court, and that the motion could not now be…
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DQWER: On the first day of th>e last term, the demandant was called; and again, on the quarto die post, and a day was given for her to appear and prosecute her claim on the last day of the term; and the demandant not appearing on that day, her default was entered, and a judgment of nonsuit entered thereon. now moved to set aside the default, and subsequent proceedings, and read affidavits. . that the demandant was regularly out of Court, and that the motion could not now be heard.
1Per curiam
Unless the default of the demandant, on the last day of the term, had been excused, the judgment of nonsuit ought not to be disturbed. It appears, that the demandant’s attorney had died; and, without adhering to the strictness of the ancient practice, we think the facts stated in the affidavits sufficient to excuse the default.
Motion granted.(a)
Vide Sacket v. Lothrop, 1 Johns. Cases, 249. Booth’s Real Actions, 92. Swift v. Livingston, 1 Johns. Cases, 173. The tenant, in a writ of right, cannot be called before the quarto die post; bht the demandant may be called on the first day of the term,…
2Cited by3 opinions
- Malcom v. RogersNew York Supreme Court · 1823
- Rathbone v. StockingNew York Supreme Court · 1848
- Wilder v. ButterfieldNew York Supreme Court · 1875