Cusson v. Whalon
New York Supreme Court
Motion by defendant for judgment, as in case of nonsuit for not going to trial. The reply, merely denying that the plaintiff had sufficient knowledge of the matter in the answer to form a belief of its truth, was served by mailing on the 31st December 1850; and the Clinton Circuit (where the venue was laid) was held on the 3d of February 1851. The plaintiff did not notice the cause for trial, and now insisted that the defendant had time to amend his answer, which did not…
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Motion by defendant for judgment, as in case of nonsuit for not going to trial. The reply, merely denying that the plaintiff had sufficient knowledge of the matter in the answer to form a belief of its truth, was served by mailing on the 31st December 1850; and the Clinton Circuit (where the venue was laid) was held on the 3d of February 1851. The plaintiff did not notice the cause for trial, and now insisted that the defendant had time to amend his answer, which did not expire until too late for that circuit. That as the plaintiff’s attorney lived in Chateaugay in the county of Franklin, and…
1Opinion of the Court
Hand, Justice.
No doubt, where both parties were actors, as in an action of replevin, no motion for judgment as in case of nonsuit, would be entertained, before the Revised Statutes (2 Tidd’s Pr., 703; Forrester vs. Barrett, Coleman’s Pr. Ca., 92, S. C. 1 J. C. 247. And see Rogers vs. Tifft. 17 J. R. 267). By the Revised Statutes, where neither party noticed the cause in replevin, the defendant might move (2 R. S. 530, § 46. And see Potter vs. Babcock, id. in notes). By § 258 of the Code, either party may notice the cause for trial. It would have been more analagous to the old practice, to…
2Cited by5 opinions
- Bucklin v. Buffalo, Attica & Arcade RailroadNew York Supreme Court · 1903
- Myers v. Metropolitan Elevated Railway Co.New York Court of Common Pleas · 1890
- Evans v. LichtensteinNew York Supreme Court · 1870
- Graham v. Stirling InsuranceNew York Court of Common Pleas · 1880
- Stilwell v. KellyThe Superior Court of New York City · 1874