Sayer v. Finck — 2 Cai. 336

Majority

p. 336

Sayer against Finck.

Headnote

An opinion of a plaintiff’s attorney, that a cause on the day docket will not be brought on, will not, in future, be a reason for setting aside an inquest, taken in the absence of the defendant’s attorney, though accompanied by a strong affidavit of merits, notwithstanding it was allowed in this case.

Hopkins moved to set aside tbe inquest taken in tbis cause at tbe last sittings, New-York, on an affidavit by two persons, that tbe debt for wbicb tbe action was brought bad been paid, and on another affidavit by tbe defendant’s attorney, stating that be did not attend when the cause was called on, because, from a conversation with tbe partner of tbe plaintiff’s attorney, and who' bethought was attorney also for tbe plaintiff,-be was led to imagine tbe trial could not be bad on that day, as there were eighteen prior causes on tbe day docket, and that tbe plaintiff’s attorney himself would not attend.

Let tbe inquest be set aside on payment of all costs. Tbe court grant tbis only under tbe peculiar circumstances of tbe case. It appears that the defendant’s attorney thought be was conversing with a persons who was acting as attorney for the plaintiff. Tbis belief might easily be induced from this circumstance,.that tbe attorney on record and thé person spoken with, were in partnership. It was, however, but an opinion of tbe adverse attorney that tbe cause would not be beard. We shall, in future, expect more explicit reasons for thinking a cause will not be brought on. Tbe affidavit of merits is very strong. Taking tbis, together with tbe misapprehension of tbe defendant’s attorney, that tbe partner of tbe plaintiff’s attorney was absolutely concerned in tbe suit, are tbe grounds of our present determination.

Motion granted on costs.