Pease v. Blossom

Headnote

Where a cause is not brought to a hearimg within forty days after the service of a notice requiring it to be done, under the rule, defendant may move and obtain judgment as in case of non-suit.

Noticing the cause wijhin the forty days is not enough; it should be brought to a'hearing.

Motion by defendants for judgment as in case of non-suit, for not bringing the cause to a hearing.

At the last September special term of this court, the venue in this cause was changed from the city and county of New-York, to the county of Washington; and at the same time the cause was referred, and by agreement, to John McLean, Esq., first judge of Washington county, as sole referee. On the 4th September, 1845, copies of the rules changing the venue and for reference were served personally on B. H. Shannon, Esq., attorney for plaintiff; the cause not having been noticed for hearing, defendants’ attorneys served plaintiff’s attorney with a notice, requiring plaintiff to bring the cause to a hearing within forty days after service of that notice; which notice was served and service admitted by plaintiff’s attorney on the 21st of October, 1845.

On the 29th day of November, 1845, plaintiff’s attorney mailed at New-York a notice that the cause would be brought to a hearing before the referee on the 12th day of January, 1846, which notice was received by defendants’ attorneys on the 3d day of December, 1845.

On the 23d December, the papers for this motion were .served by mail. It was alleged by defendants’ counsel, that the plaintiff had not brought the cause to a hearing according to the rules and practice of the court.

Plaintiff’s attorney stated he should have proceeded in good faith to have brought the cause to a hearing, according to the notice served by him on the 29th November, if he had not been stayed by the papers for this motion.

^Plaintiff’s counsel insisted that, if the cause was noticed for hearing within the forty days, it was sufficient under the rule.