Hooper v. Beecher — 36 N.Y. St. Rep. 812

Majority

p. 812

Nathaniel Hooper et al., App’lts., v. Charles McCullough Beecher et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

Trial—Stipulation—Notice.

By the giving of a stipulation setting down a case for trial on a given day a party is estopped from asserting that the case was not in a condition to be tried on such day; and, in such case, it is not necessary for the other party, who is insisting upon a trial according to the stipulation, to return within twenty-four hours a notice of trial for a later date, served subsequent to the giving of such stipulation.

Appeal from order refusing to adjourn the trial of an action.

F. Bien, for app’lts; G. F. Tracy, for resp’ts.

A new trial of this action having been ordered by the court of appeals, the case was restored to the calendar and noticed for trial by the defendants for the April term, 1890, and the same duly placed upon the calendar. In August, 1890, an amended complaint was served and an answer thereto made in October, 1890; and a reply was also served in the same month.

On the 8th of December, 1890, the parties filed a stipulation with the clerk setting the case down for trial on the second Monday of January, 1891. When the case was reached upon the calendar of the special term the plaintiffs served a notice of trial for the first Monday of February, which notice was retained by the attorney for the defendants, and moved to strike the case from the calendar on the ground that new issues having been framed it was necessary to serve a new notice of trial, and to file a new note of issue. The motion was denied and the case set down for trial on the 16th of January, on which day the motion was renewed and denied, and from the order thereupon entered this appeal was taken.

p. 813

It seems to us clear that by the giving of the stipulation setting the case down for trial on a given day the plaintiffs are estopped from asserting that the case was not in a condition to be tried upon the day upon which they agreed to try the same.

The objection that the notice of trial was received and retained and not returned within twenty-four hours cannot avail the appellants, because they had notice at the time of the service of this notice of trial that the defendants were insisting upon the trial, and claiming the right to a trial, because of the stipulation made in December, 1890, and that the right to a trial did not depend upon the service of a new notice of trial. This was giving the plaintiffs clear and definite notice that the notice of trial which was then served would not be recognized, and he was not in any degree misled by reason of its retention.

We tliink, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Daniels and O’Brien, JJ., concur.