Kimball v. Knights
New York Supreme Court
Order to stay proceedings. After notice of trial served, the defendant obtained an order to stay proceedings to enable him to move for a commission to examine witnesses. The plaintiff on the first day of the circuit obtained a vacatur of the order, and without giving notice of the same, on the next day took an inquest, which the defendant now moved to set aside as irregularly taken.
1Opinion of the Court
By the Court,
Bronson, J.
[658] A plaintiff is not bound to give notice of the vacatur of an order under such circumstances, if notice is at all necessary. Where a defendant obtains an order at so late a day, it behooves him to look to his cause, and if he learns that the order has been revoked, to ask the circuit judge to put off the trial for want of witnesses, who may then exercise his discretion in the matter. The plaintiff was regular, and the motion would be denied, but that the defendant now satisfies me that he is entitled to a commission. This case is different from that of Smith v.…
2Cases cited1 opinion
- Smith v. BowenNew York Supreme Court · 1829