Legal Opinion

Jones v. Case

New York Supreme Court

Decided December 15, 1869PublishedCited by 4 opinions

The two causes were reached in a regular call of the calendar, and moved for trial by the plaintiff; the defendant thereupon moved, that the plaintiff be restrained from proceeding to trial and judgment, alleging that he was then ready and willing to pay the amount demanded in the complaint, and wished to avoid paying a trial fee. The plaintiff opposed the motion; and insisted upon his right to go to trial, and to have his trial fee, at that stage of the actions.

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The two causes were reached in a regular call of the calendar, and moved for trial by the plaintiff; the defendant thereupon moved, that the plaintiff be restrained from proceeding to trial and judgment, alleging that he was then ready and willing to pay the amount demanded in the complaint, and wished to avoid paying a trial fee. The plaintiff opposed the motion; and insisted upon his right to go to trial, and to have his trial fee, at that stage of the actions. The court granted the motion and madé an order which was duly entered, that the defendant should pay forthwith, the amount demanded…

1Opinion of the Court

By the Oowrt,

Johnson, J.

The orders appealed from not only affecte'd a substantial right, but they were designed and intended to determine the actions, and prevent a judgment. They are, therefore, clearly appealable. It is the clear legal right of a plaintiff when his cause is reached upon the regular call of the calendar,' to move it for trial, and to proceed to trial and judgment, unless some reason is shown for postponing the trial to a future time. The defendant here did not wish to postpone. He had no defense and did not want any trial at all, all he asked for was to stop the trial and…

2Cases cited1 opinion

  1. Moffatt v. FordNew York Supreme Court · 1853

3Cited by4 opinions

  1. Ehlers v. WillisNew York Marine Court · 1882
  2. Jennings v. DoyleAppellate Division of the Supreme Court of the State of New York · 1942
  3. Kronsberg v. MayerThe Superior Court of the City of New York and Buffalo · 1890
  4. Lockwood v. Salmon River Paper Co.New York Supreme Court · 1892

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