Stinnard v. New York Fire Insurance

Headnote

A verbal arrangement between the attorneys that the cause shall go over the circuit, held good, although the defendant disavows it, and attends the court prepared for trial. A motion for judgment as in case of non-suit under such circumstances, will be denied with costs.

Motion by defendants for judgment as in case of non-suit.—Issue was

joined in this cause on the 31st day of August, 1844; was noticed for trial on the 7th April 1845, for the April circuit in Westchester county, which commenced April 21, 1845. The cause was not brought to trial; and younger issues were tried at said circuit. William Nelson, Esq., of Peekskill, was substituted attorney for the defendants on the 18th April 1845, in the place of S. F. Cowdrey, Esq., of New-York, the former attorney of defendants; and notice of such substitution was, on the 29th of April 1845, served on Minot Mitchell, Esq., plaintiff’s attorney. On the 15 th of April, Minot Mitchell, plaintiff’s, attorney, wrote to his son William M. Mitchell, Esq., of the city of New York, that he should not be able to prepare and try the cause at the April circuit, on account of his absence from the county; and requested said William M. Mitchell to call on S. F. Cowdrey, Esq., defendant’s attorney, and get his consent to let the cause go over to the fall circuit, which would be held at White-Plains, and would be much more convenient for parties and witnesses than the April circuit held at Bedford. William M. Mitchell swore that on or about the 16th April he called on S. F. Cowdrey, Esq., defendants attorney, and delivered to him the letter of said Minot Mitchell. Cowdrey replied that it would be more convenient for the defendants to have the cause tried at the fall circuit held at White-Plains, and he would consent that it should go off for the April circuit according to the request of said Minot Mitchell; that Cowdrey further said no further notice nor any stipulation would be necessary, but that, the case should go off without costs and without prejudice to either party. This arrangement William M. Mitchell, Esq., immediately communicated to Minot Mitchell, Esq., plaintiff’s attorney; and which was not substantially denied in the affidavit of S. F. Cowdrey, Esq., on the motion. Between the 18th and 21st of April, O. H. Jones, president of the defendants, and who had the management of the cause, in an interview with S. F. Cowdrey, Esq., stated to him, after learning of the arrangement, that he preferred to have the cause tried at the April circuit: to which Cowdrey replied he had better see William M. Mitchell, Esq., and inform him as to that fact immediately. On the same day Jones called on said W. M. Mitchell, and told him he would not consent to put the cause off until the fall circuit : to which Mitchell replied, that Mr. Cowdrey had already consented, and it was then out of the question for plaintiff to prepare for trial at the April circuit, and the cause would not be tried. Plaintiff stated he should get ready with his witnesses and go to the circuit at all events, and the plaintiff would have to pay the expenses of it; and did accordingly attend the circuit, prepared to try the said cause.