Fish v. Wright — 5 Cow. 269

Majority

p. 269

Fish against Wright.

Headnote

Where the cause is noticed for trial, and the defendant then obtains an order to stay proceedings, with a view to move for a reference the motion will not be granted, except on the terms of paying the costs of preparing for trial to the time when the order waa served.

On motion for a reference, in behalf of the defendant, it appeared that the cause, being at issue, had been noticed for trial by the plaintiff’s attorney, for the 29th of November last; but on the 26th, the defendant’s attorney served him with an order to stay proceedings, made with a view to this motion.

The court agreed that the motion must be granted; but one question was, if it should not be on payment of the costs of the plaintiff, in preparing for trial.

C. F. Ingalls, for the defendant.

N. B. Doe, contra,

cited Budd v. Malburn, (1 Cowen’s Rep. 47.)

We think this question comes within the decisions of this court, in the case cited, and other cases, where orders to stay, with a view to the change of venue are obtained, after the cause is noticed for trial. The defendant may take the effect of his motion; but this must be on payment of the costs of the notice, and preparation for trial, to the time when the order was served.

Rule accordingly.