Hicks v. Knickerbacker — 2 Wend. 288

Majority

p. 288

Hicks vs. Knickerbacker.

Headnote

theS adjourn1 ment of a cir-first day of the next term, the defendant is not bound to motion°tlCefor judgment asín case of nonsuit for a subsequent day in of6term,''but may apply at termUbSe<1Uení Where there are not eight

Motion for judgment as in case of nonsuit. Issue was j°lne(l January, 1828. The cause was not noticed for trial at the last February circuit in Albany, where the venue was laid. The circuit commenced on the third day of February and adjourned on the twelfth. The February term of , J J 0 J this court commenced on the sixteenth day of the month, and uotice might have been given for a day in the first week of the term, according to the provisions of the rules of October / term, 1827, which was objected m opposition to the motion.

Jr* Pierson, for defendant,

-^Gi'/cer, f°r plaintiff.

The defendant might have given notice after the adjournment of the circuit for a day in the first week of term, but he was not bound to do so. Not being able to give notice for the first day of term after the adjournment of the circuit, he was under no necessity of noticing his motion for a subsequent day in term, but might wait until the next term. The defendant is entitled to judgment as in case of nonsuit, unless the plaintiff stipulates and pays the costs.

Anon.

the^rato^of court requiting ticeofdmotion' will not be received as an excuse for not giving sufficient notice.

Ignorance of the rule of court requiring eight days notice of motions, will not be received as an excuse for not giving sufficient notice.