Baldwin v. Tillson — 1 Denio 621

Majority

p. 621

Baldwin vs. Tillson.

Headnote

Where the plaintiff has brought the cause to trial pursuant to a stipulation, and the verdict is set aside and another circuit has passed, he may stipulate again.

S. S. Bowne, for the defendant,

moved for judgment as in case of nonsuit. Issue was joined in October, 1842, and the cause was tried at the Otsego circuit where the venue was laid, in September, 1843, the plaintiff being under a stipulation to try at that circuit. The verdict then obtained was set aside upon a case made, at the July term, 1844; and on the second Monday of April last, another circuit was held in Otsego, at which .the cause was not noticed for trial, but the plaintiff’s attorney served a stipulation to try at thé next ensuing circuit

p. 622

Bourne insisted that by- rule 42, the stipulation was no answer to the motion, the plaintiff having “ before stipulated.”

N. Hill, Jr., for the plaintiff.

The exception in the rule does not apply to a case where the first- stipulation has been performed. In this case, therefore, the plaintiff had a right to stipulate again.

Motion denied.