Majority
Headnote
The plaintiff had noticed this cause for trial at the last Seneca circuit; but, neglecting to file his nisi prius record on the. ¡first, day. of the circuit, the defendant on the second day tnpved for, and to.ok a rule for a ne recipiqtur. , On the third day the plaintiff appeared with his witnesses, and would have tried the cause had he not been prevented by the rule.The defendant had a right to his ne reeipiatur on the default of the plaintiff to file his record during the first day. The cause failed of trial by the plaintiff’s default, and the. motion must be granted, unless the plaintiff -stipulate and pay costs.[1]
, Buie, accordingly.
[1] [1] Under the-existing practice of the, state of New York,, whenever an issue of fact shall have been joined in any. action, anct thp.pjaintiff therein shall fail to bring the same to trial, according to the course and practice of the court, the defendant may move fbr the dismissal of the complaint, with costs. If it is made to appear to the court, that the neglect of the plaintiff to bring the action to trial, was not unreasonable, the court shall permit the plaintiff,,on.payment of epsts,-.j;o bring the ^aid action .to trial at the next court where the same js triable. Supm. Ct. Rules of 1847, Nos. 41, 42, 43; N. Y. Code, sec. 274; 18 Wendell Rep. 670 ; 5 [Wendell, 101; 25 Wendell, 688; 11 Wendell, 181; 1 Howard’s Pr. Rep., 6, 10, 33. 39, 40, 42, 53, 173 ; 6 Howard, 28 ; 2 N. Y. Rev. Stats., 530, sec. 46; Supm. Ct., Rules of 1849, No. 23; Supm. Ct. Rule of 1852, No. 21. The .court may ^Iso dismiss the complaint, with costs, in favor of one or more defendants, in ease of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against he defendant or defendants served. N. Y. Code of 1851, sect. 274.