Brant v. Fowler — 2 Wend. 284

Majority

p. 284

Brant, ex dem. Buckbee and wife, vs. Fowler.

Headnote

Wherethere causes at issue question's the same, and upontheTame propm^course for a plaintiff necessity * of tító"2 causes^ and to prevent motions for case™fnonsuit in the causes applyiC to iSthe court for a rulo thatonerfthe ed, and that Mdo tibe event"

Motion for judgment as in case of nonsuit. There were two causes noticed for trial at the Westchester circuit against &e defendant, in which the questions were the same, and the evidence the same. The circuit judge refused to try both. The plaintiff elected to try one of the causes, hut omitted to a stipulation that the cause remaining untried should abide the event of that tried. The defendant obtained a verdiet, and jjhe plaintiff made a case. The defendant moved *"or judgment as in case °f nonsuit for not trying the second CRtlSe.

W. Nelson, for defendant,

ra» Dyke, for plaintiff.

The defendant is end-tied to his rule, unless the plaintiff stipulates to try at the nex* circuif> and pays the costs. The proper course, where there are several causes at issue in which the question is the same, and which depend upon the same evidence, is to apply to the court for a rule that one of the causes be tried, and that the others abide the event. By doing so, the plaintiff will prevent applications for judgment as in case of non-suit in the causes not tried. The plaintiff here having omitted to stipulate that this cause should abide the event of that tried, the defendant must have judgment as in case of non-suit, unless the plaintiff now stipulate that this cause shall abide the event of the cause which has been tried.