Codwise, Ludlow & Co. v. Hacker — 1 Cai. 74

Majority

p. 109

Codwise, Ludlow & Co. against Hacker.

Headnote

When there are cross causes, and the plaintiff in each has obtained a verdict if material facts be omitted in a case made by defendant, and the papers from whence they may be inserted be in the hands of the plaintiff, the court will not order judgment to be entered, because cases have not been delivered, and though the cause has been noticed, but will give leave to amend and perfect.

Practice as to noticing cases.

The plaintiffs, in the sittings of June, 1802, at Hew York as owners of a ship of which the defendant was captain,' had, in an action against him for deviating from his orders, obtained a verdict, subject to the opinion of the court, on a case to be made; and he in a cross suit, had recovered against them a larger sum, subject to deductions, in case the opinion of the court should be against him as to certain items, charged and allowed by the jury.

A case was made on the part of the defendant to which the plaintiffs proposed amendments, which were adopted; the cause was then noticed for argument for the next October, term, and also for January term following, in Albany. But it was then recollected that some material facts had been omitted, without which the case could not present the only important question in the cause. This was mentioned to the plaintiffs’ attorney, who would not say whether he would consent to the amendments or not. The papers from whence they were to be drawn, and the case perfected, were in the hands of the plaintiffs’ attorney in Hew York; so that the case could not be completed in Albany. Ho

p. 110

application was made to a judge to correct the amendments. Nor had cases been delivered.

Hopkins

now moved to set aside the original order to stay proceedings, that a case might be made,^[1] and for leave to enter up judgment.

Riker

resisted the application, because the case was imperfect, and the papers from whence only it could be completed were in the hands of the plaintiffs.

_ We must deny the motion; because, in the first place, there were cross verdicts to nearly the [*75] same ’’''amounts. Secondly, the cases were never perfected, and it did not appear to be exclusively the fault of either.^[2] Thirdly, the plaintiffs’ attorney not having denied the omission of certain material facts, the court would presume they had appeared on the trial, and ought to be a part of the case. Let the case be perfected within SO days.^[3]

Hopkins prayed costs, insisting he had been regular.

We consider that the plaintiff was irregular, in not answering, when applied to, whether he would receive amendments or not.

Motion denied.

The Court afterwards said, that where a defendant, after verdict, makes a case and notices for argument, if he does not appear at the time when called, judgment shall go:

(b) (b) See Hun v. Bowne, ante, 23, n. (a).

(c) (c) The time for making a case cannot be enlarged by a judge beyond the two days allowed by the rule of January, 1799, though he may that for proposing amendments, or appearing before him. Hornbeck v. Low, Cole. Cas. 127. But this case is now overruled, and a judge may, in vacation, enlarg* the time for making a case. Black v. Brown 9 Johns. Rep. 264 ,

p. 111

but when the plaintiff notices a case made on the part of the defendant, and the plaintiff is not ready, it shall go down.^[1]

(a) (a) The practice as to noticing for argument, cases made, formerly was, that ¿lie party entitled to bring it on was required so to do in the next term, and on his neglect the opposite party was at liberty to notice. Hoyt and Bennett v. Campbell, Cole. Cas. 128. It has been since ruled, that either party may notice for argument, the right to bring it on at the next term being equal; therefore, if the party whose duty it is to make up the cases, and bring on the argument, be not ready to deliver them to the bench, when the cause is called on, upon the notice of the opposite side, judgment shall go against him. Malcolm ads. Bayard, 1 Johns. Rep. 316 . But when a case is noticed on both sides, and called on first, upon the notice of the party not bound to prepare the cases, it is presumed the practice has been, to wait till it be called on upon the notice of the party who is so bound, and has the right to open, and not to allow judgment against him, unless he be not then ready, and the other party is. A cause noticed and not brought on, must be reroticed, as it will not be carried over to the next term, of cawús. Livingston v Rogers, post, 437.