Hawley v. Seymour
New York Supreme Court
Motion on the part of defendant, that complaint be dismissed, in consequence of plaintiff’s neglect to proceed to trial at the Circuit Court held in the county of Ontario, on the second Monday of November last, pursuant to notice.
Read the full summary
Motion on the part of defendant, that complaint be dismissed, in consequence of plaintiff’s neglect to proceed to trial at the Circuit Court held in the county of Ontario, on the second Monday of November last, pursuant to notice. It is shown on the part of the plaintiff, that he was unable to try the action at the circuit mentioned, by reason of the sickness’ of one of his witnesses; of which fact the plaintiff informed the defendant’s attorney at the circuit, and at the same time offered to pay the defendant’s costs of the circuit; to which the attorney replied he did not know what they…
1Opinion of the Court
Welles, Justice.
As the plaintiff does not raise the objection that the moving affidavits are silent as to whether the action was noticed for trial by the defendant; nor the defendant that the papers do not show whether a stipulation was offered, I shall regard those questions as out of the case. By rule 20, the defendant can only make this motion where the action has not been noticed by him; and by the same rule in connection with rule 21, the plaintiff is bound to serve a stipulation in order to avoid the consequences of his neglect to try, &c. There was probably an understanding between the…
2Cited by1 opinion
- Champion v. WebsterNew York Supreme Court · 1860