Boyle v. Boyle

Decided December 15, 1845

New York Supreme Court · decided 1845-12-15

Motion, by defendant for judgment as in case of nonsuit. This cause was referred at a circuit in May last, to a sole referee, on motion of plaintiff. In September last, the plaintiff not having noticed it for hearing, the defendant’s attorney served plaintiff’s attorney with a notice in writing, that plaintiff notice the cause for a hearing in forty days, or that defendant would move for judgment as in case of nonsuit, according to the 44th (new) rule.

Decided 1845-12-15

¶1Plaintiff’s counsel objected, 1st, that the affidavit did not show it was referred, as it did not name the circuit judge, by whom it was referred. 2d, that the new rules did not take effect until the first day of August last, and consequently could have no application1 to causes referred, before the rule (44) went into operation.

Jewett, Justice.

¶2Held, the reference regular; and that the new rules must now govern, for as soon as they went into effect, there were no other rules for the court.

¶3Motion granted with costs.