Livingston v. Delafield — 1 Cai. 6

Majority

p. 12

Livingston against Delafield.

Headnote

After stipulation, the court will, on special circumstances, allow a second excuse, and not grant judgment as in case of non-suit.

This cause had been put off on the usual affidavit of absence of a witness, in expectation of whose return the plain tiff had stipulated to try peremptorily. On his not doing so, the defendant had, on a former day, moved for judgment as in case of nonsuit, for not proceeding to trial; but not succeeding, and the cause not having been brought on according to the second stipulation, the motion was now repeated.

On the part of the plaintiff, an affidavit was read, [*7] stating that the witness *was a seafaring man, and had never been within the state of blew-York since the suit commenced, and that the stipulation to try was in expectation of his return.

The witness having been constantly out of the state ever since the suit was commenced, and being a seafearing man, some indulgence is due from his way of life. The defendant, therefore, can take nothing by hia motion.^[1]

Motion denied.

(a) (a) A second stipulation is always allowed, if the motion for judgment as in case of nonsuit, for failing to try according to the first stipulation, be not made in the term next after the default. Haskins v. Sebor, Caines’ Prac. 514. Or if the defendant be the cause of not trying. Coles v. Thompson, 2 Caines, 47. When witnesses are absent, and their return not immediately expected, a peremptory stipulation is not exacted. Gardner v. Moses, 1 Taun. 118. See also Farnham v. M‘ Clare, 7 Wend. Rep. 483 ; Jackson v. Wakeman, 2 Cowen Rep. 578; Nixon v. Hallet, 2 Johnson’s Cases, 218; Haskins v. Sebor, 2 Johnson's Cases, 217.