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Jacob v. Thompson

80 N.Y.S. 1028 Court N.Y. App. Div. Decision date 1903-03-13 English

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p. 1028
JACOB v. THOMPSON.
(Supreme Court, Appellate Division, First Department.
March 13, 1903.)

Headnote

1. Trial — 1Transfer to Special Term — Laches.
Where an action has been noted for trial, and has been once tried, plaintiff’s right, after two years’ delay, to have the equitable issues raised by the answer sent to Special Term, is lost by loches.
Appeal from Special Term, New York County.
Action by Emma L. Jacob against J. Campbell Thompson. From an order directing issues raised by equitable counterclaim and reply to be tried at Special Term, defendant appeals. Reversed.
Argued before VAN BRUNT, P. J., and McLAUGHLIN, O’BRIEN, INGRAHAM, and LAUGHLIN, JJ.
Wm. P. Maloney, for appellant.
Chas. De Hart Brower, for respondent.

We think that the plaintiff’s motion to place the cause on the Special Term calendar should have been denied upon the ground of loches. The action was noticed by both parties for Trial Term, and it has there been once tried, and now, after two years of delay, the effort is made to have it taken from the Trial Term calendar and sent to the Special Term. Upon the authority of the following cases, we think that the plaintiff, by loches, has waived his right to have the issues raised by the answer sent to the Special Term: Tubbs v. Embree, 89 Hun, 475 , 35 N. Y. Supp. 320 ; Mackellar v. Rogers, 109 N. Y. 468 , 17 N. E. 350 ; Boyd v. Boyd, 12 Misc. Rep. 119 , 33 N. Y. Supp. 74 , affirmed 146 N. Y. 403 , 42 N. E. 542 .

The order must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

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