Wooster v. Burr
New York Supreme Court
Motion to set aside a nonsuit. The action was assumpsit; the defendant gave notice of set off, the suit was tried, the jury came into court prepared to certify a balance in fa-var of the defendant, the plaintiff did not appear, and a nonsuit was entered.
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Motion to set aside a nonsuit. The action was assumpsit; the defendant gave notice of set off, the suit was tried, the jury came into court prepared to certify a balance in fa-var of the defendant, the plaintiff did not appear, and a nonsuit was entered. The defendant moved to set the same aside, and for a rule that he have leave to notice the cause for trial by proviso, or that the court express their opinion that the verdict ought to have been received as a direction upon a future trial.
1Opinion of the Court
By the Court, Savage, C. J.
There is nothing in the statute which changes the rights of the parties. The statute directs that the sum certified shall be recorded, but the verdict of a jury can be received only by the assent of the plaintiff; and when no verdict is pronounced, no sum is certified. Where a verdict was received without the assent of the plain*296tiff, it was set aside, (1 Wendell, 36;) and the court there held that it is the right of a plaintiff to submit to a nonsuit. The plea of tender is not analogous to a notice of set off; *^e former admits the debt, the latter not.
Motion…
2Cases cited1 opinion
- People v. Mayor's CourtNew York Supreme Court · 1828
3Cited by11 opinions
- Derick v. TaylorMassachusetts Supreme Judicial Court · 1898
- Washburn v. AllenSupreme Judicial Court of Maine · 1885
- Schintzuis v. . Lackawanna Steel Co.New York Court of Appeals · 1918
- Merchants' Bank v. SchulenbergMichigan Supreme Court · 1884
- Floody v. Great Northern Railway Co.Supreme Court of Minnesota · 1908
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