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Farnam v. Despard

1 Wend. 287 Court N.Y. Sup. Ct. English

Delivered by Sutherland, J.

Contents

Majority

p. 287
Farnam ads. Despard.

Headnote

Where an inquest was taken in the absence of the defendant’s counsel, and the plaintiff refused to reinstate the cause on the offer of the payment of costs, and it appeared that the plaintiff would not have lost the circuit, the inquest was set aside, and the costs directed to abide the event.
Motion to set aside inquest. In consequence of criminal causes being set down for trial, the attorney for the defendant did not attend in court. Those trials were unexpectedly postponed, and the calendar of civil causes called through from No, 18 to No. 96, without any cause being ready for trial. Several inquests were taken, and amongst the number, an inquest in this cause, which stood No. $5 on the calendar. Immediately after the inquest was taken, the defendant’s attorney came into court, applied to the plaintiff’s attorney to waive the inquest and reinstate the cause on the calendar, and offered te pay him the costs of the inquest, which he refused. The next morning the judge commenced calling the calendar again at No. 18, and several causes of a date junior to this cause were tried. A motion was now made to set aside the inquest.
L I. Hinman, for defendant,
<0. t/L Mam, for plaintiff.

By the Court,

It was undoubtedly the duty of the attorney to watch bis cause; but it seems the bar generally were misled by the circumstance of criminal cases set down for trial not coming on. Notwithstanding that the inquest was regularly taken, the plaintiff’s attorney ought to have waived it on the offer of the payment of costs. The state of the calendar had not been changed, and there -was every probability that the plaintiff would have had an opportunity to try his cause at that circuit, and such is proved to have been the result, as junior causes were subsequently tried. Under these circumstances, the inquest must be set aside, and to discourage the disposition of making costs, by insisting upon advantages of this kind, the court direct the costs of the circuit and of this motion to abide the event of the suit.