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Ryers v. Hillyer

1 Cai. 112 Court N.Y. Sup. Ct. English

Contents

Majority

p. 157
Ryers against Hillyer.

Headnote

If a notice of motion for nonsuit be titled versus instead of ad sectum, and the affidavit annexed rightly titled, the notice will be good.
Spencee moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial.
Hoffman
resisted the application, because the notice was entitled William Hillyer against Joyn P. Byers, instead of William Hillyer ad sect. John P. Byers; this, he said, was fatal, there being no such suit in existence as the one in which the notice was given, but he added, he would not have urged it except from its being one of Mr. Golden's causes, whose state of health the whole court knew.
Spencer,
contra, observed, that there could be np force in the objection, unless it appeared that the party had
p. 158
[*113] been *misled.[1] The notice was for judgment as in case of nonsuit for not proceeding to trial, therefore, it must have come from a defendant. In the next place, it was an affidavit, a copy whereof was annexed, and that affidavit was rightly entitled. It is a mere question of who shall pay costs. There has been no countermand, and the defendant kept all the circuit with his witnesses.
Hoffman.
As this is the first default, will the court oblige us to stipulate ?

Stipulate to try at the next circuit for the city and county of New-York, and pay the costs of the present application.

On stipulating, and paying costs,

Motioned denied.

Radcliff and Livingston, justices, absent.