Griffith v. Miller — 7 Wend. 514

Majority

p. 514

Griffith vs. Miller.

Headnote

After the commencement of a circuit, at which a cause ought to have been noticed for trial, the defendant may give notice of motion for judgment as in case of nonsuit.

It is not necessary in any cause in which the venue is laid in any county other than New-York, to state that the cause might have been tried had it been noticed, though it seems that such fact stated by a plaintiff in opposition to the motion would excuse him from stipulating.

April 5.

Motion for judgment as in case of nonsuit. On the third day of the last March circuit in Rensselaer county, the defendant prepared papers for .this motion. In his affidavit he stated that the venue was laid in Rensselaer, that issue was. joined in June, 1830, that the circuit court was in session, and

p. 515

that the cause had not been noticed for trial. The plaintiff objected to the sufficiency of the affidavit, insisting that to entitle the defendant to his motion, he should have stated that had the cause been noticed for trial, it might have been tried.

By the Court,

It is not necessary to state in the affidavit that the cause might have been tried, had it been noticed when the venue is laid in any county other than New-Yorlc; when the venue is laid there, such fact must be stated. 13 Johns. R. 156. In the case of Ross v. Vaughan, 3 Johns. R. 442, decided in 1808, where the venue was laid in Essex, it was shewn that had the cause been noticed, it could not have been tried ; the court held the excuse insufficient, saying that the rule adopted in respect to New-York causes was not intended to apply to country causes. In a late case a different decision has been made, and I am not prepared to say but that it should be the rule in cases of this kind ; it is not material, however, now to decide the question, as no such excuse is here offered. The case of Jackson v. Vrooman, 6 Cowen, 392, was urged in opposition to this motion, but that case is distinguishable from the present. There, as here, the defendant insisted that the plaintiff having permitted the time for noticing to pass, it was impossible for him to try his cause, and that therefore his motion was properly brought before the court; but the answer was, that the notice was given previous to the circuit, which might have fallen through; and if so, the plaintiff was not in default, and on that ground the motion was denied. A defendant is bound to "shew affirmatively that a circuit has been held, at which the cause might have been tried. 6 Cowen, 388, which was' not done in Jackson v. Vrooman. Here it is 'shewn that a circuit was held, and the plaintiff having omitted to notice his cause for trial, was in default. The motion must be granted, unless the plaintiff stipulates and pays costs.