Codwise, Ludlow & Co. v. Hacker — 1 Cole. & Cai. Cas. 177

Majority

p. 177

Codwise, Ludlow and Co. v. John Hacker.

Headnote

THE plaintiffs, in the sittings of June, 1802, at New-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.

p. 178

• A case was made on the part of the defendant, to A y which the plaintiff 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 Netv-York ; so, that the case could not be completed in Albany. No 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, and for leave to enter up judgment.

Hiker 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 same amounts. Secondly, the cases were never perfected, and it did not appear to be exclusively the fault of either. Thirdly, the plaintiffs’ attorney not having denied the omission of certain material facts, the court Would presume they had appear

p. 179

ed on the trial, and ought to be a part of the case.—» ’ ° r Let the case be perfected within thirty days.

Hopkins prayed costs, insisting he had been regular.

We consider, that the plaintiffs were irregular, in not answering when applied to, whether they would receive amendments or not.

N. B. It was said, by the court, 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: but when the plaintiff notices a case, made on the part of the defendant, and the plaintiff is not ready, it shall go down.