Knowles v. Poillon

Headnote

On motion for judgment as in case of non suit, where it appeared plaintiff’s counsel was actively engaged elsewhere when the cause was called, and defendant’s counsel was not present at the time, b.ut the counsel on each side within a few minutes after appeared in court, and the defendant’s counsel refused to have the cause reinstated, and In answer to an order to show cause the next day why the cause should not be reinstated, gave as a reason that one of his witnesses was absent; both parties in fact having intended to try : Held, that plaintiff must stipulate and pay costs.

Motion by defendants for judgment as in case of non-suit.—The cause was on the day calendar at New7 York circuit, June 13, 1845;' both parties in fact ready for trial, but their counsel and attorneys actually employed elsewhere, and did not get into court till after the cause was called. Plaintiff’s attorney immediately requested defendants’ attorneys to consent to have the cause reinstated on the calendar. Defendants’ attorneys refused, 'and application was on the same day made and an order granted requiring defendants to show cause on the 14th June (next day) why cause should not be reinstated. Defendants showed for cause, that a material witness was absent, and the judge thereupon refused to reinstate. Plaintiffs alleged in their papers that this witness was Peter Poillon, one of the defendants, and that he was present when plaintiffs’ attorney requested defendants’ attorneys to allow the cause to be reinstated, and that he was also present when the order of 13th June requiring de

fendants to show cause, &c., was served on defendants’ attorneys. Plaintiffs also alleged they were entirely ready for trial, and would have tried if their counsel had been in court. Poillon swore that he left the city, in pursuance of his previous arrangements, as soon as he ascertained from his attorneys that the cause could not be tried, and did not return in a week afterwards.