Brown v. Vedder — 2 How. Pr. 71

Majority

p. 71

Lucina Brown agt. Abraham Vedder.

Headnote

Where defendant’s attorney, in k letter to plaintiffs attorneys, stated “ that if it would be more convenient to them to try the cause at any other time than November, he would agree to put over,” and afterwards moved for judgment as in case of non-suit for not noticing and trying the cause at November circuit. JSeld, that he was precluded on the motion, by his agreement in the letter.

February Term, 1846.

Motion by defendant for judgment as in case of non-suit.

Defendant '-moved on the usual affidavit for not noticing and bringing cause to trial at November circuit, 1845, at Johnstown, Fulton county. Plaintiff’s attorneys produced a letter received from defendant’s attorney in answer to one, requesting defendant’s attorney to admit certain facts, &c.; at the bottom of the letter was written as follows : “ P. S. If it will be more convenient to you to try the cause at any other time than November, I will agree to put over. H. L.” Plaintiff’s attorneys stated that there was time enough, after the receipt of the letter, to have noticed the cause for November circuit, and they should have done so, but for the information stated as above.

D. Bubwell, defendant's counsel.

H. Link defendant's attorney.

p. 72

Mr. Comstock, plaintiff's counsel.

Noxon & Co., plaintiff’s attorneys.

Denied the motion, costs to abide the event, on the agreement contained in the letter.