Silliman v. Clark — 2 How. Pr. 160

Majority

p. 160

Robert D. Silliman et al. agt. James A. Clark et al.

Headnote

A notice of trial (printed form), served for a circuit to be held on the 4th-day of April, will be held good for the 4th Monday of April, where it is retained by the attorney upon whom it is served. If such a notice is considered irregular, it is the duty of the attorney to return it immediately.

June Term, 1846.

Motion by defendants for judgment as in case of nonsuit, or to set aside an order of reference.

Issue was joined in this cause in September last. Plaintiffs’ attorney served notice of trial on defendants’ attorney by mail on the 11th of March last, for a circuit in Eensselaér county, to be held on the 4th Monday of April thereafter; the venue was laid in Eensselaer county. Plaintiffs’ notice of trial was a printed blank, filled up by inserting 4th---day of April, instead of making it 4th Monday of April. Defendant’s counsel did not appear at the circuit in April; after the cause was called in its regular order on the calendar, the circuit judge, with the consent of plaintiffs’ counsel, referred it to three referees. On the 16th of May a copy order of reference, and notice that the cause would be brought to a hearing on the 4th of June, was received by defendants’ attorney. Defendants’ papers stated that younger issues than this cause were tried at the April circuit. Plaintiffs’ papers stated that no younger issue was tried before this cause was referred by the circuit judge. „

H. Z. Hayner, defendants counsel.

Eli Cook, defendants' attorney.

G. Stow, plaintiffs' counsel.

J. A. Millard, plaintiffs' attorney.

Defendants’ counsel insisted that the defendants’ attorney had not been served with notice of trial for the April circuit, and that he had never been served with any notice of application for a reference in the cause; it was referred without his knowledge or consent. •

Held, that the cause was properly referred, and the notice of trial served on defendants’ attorney, being retained by him, *was sufficient to inform him that the cause would be brought to trial at the April circuit, and at all' events if defendants’ attorney considered it irregular, it was his duty to have returned it immediately. Motion denied, with costs.