Root Vs. - — 4 Hill & Den. 38

Majority

p. 38

Root vs. -.

Headnote

Though, upon a cause being called at the circuit in its regular order on the calendar, the defendant consent, for the plaintiff’s accommodation, that it be set down, for trial at a subsequent day, and the cause is not again reached,- the defendant will nevertheless be entitled to judgment as in case of nonsuit.

Otherwise, where the cause is passed for the defendant’s accommodation, or a mutual agreement is made to try the cause on a particular day, and it is passed on the calendar before the day arrives. Per Bronson, J.

A. Taber, for the defendant,

moved for judgment as in case of nonsuit, for not trying at the Albany circuit pursuant to notice. When the cause was reached on the calendar the defendant was ready for trial, but for the accommodation of the plaintiff, who was not ready, consented to have the cause set down for a subsequent day. When that day arrived the de

p. 39

fendant’s counsel again consented to postpone to a subsequent day for the accommodation of the plaintiff, whose witnesses had not arrived. Owing to the amount of criminal business, the cause was not again called.

H. H. Martin, for the plaintiff. As the defendant consented to the postponement, he cannot now move for judgment.

By the Court,

If the cause had been passed for the accommodation of the defendant, or if there had been a mutual agreement that the cause should not be tried before a particular day, and it had been passed before the day arrived, the defendant would not be entitled to judgment. But here the defendant was ready, and only consented to have the cause passed for the accommodation of the plaintiff, who had two opportunities to try it. The motion must be granted unless the plaintiff stipulates and pays costs.

Ordered accordingly.