Root v.

Court for the Trial of Impeachments and Correction of Errors

Decided December 15, 1842

Court for the Trial of Impeachments and Correction of Errors · decided 1842-12-15

moved for judgment as in case of nonsuit, for not trying at the Albany circuit pursuant to notice. When the cause was reached on the calendar the defendant was ready for trial, but for the accommodation of the plaintiff, who was not ready, consented to have the cause set down for a subsequent day. When that day arrived the defendant’s counsel again consented to postpone to a subsequent day for the accommodation of the plaintiff, whose witnesses had not arrived.

Decided 1842-12-15

¶1By the Court,

Bronson, J.

¶2If the cause had been passed for the accommodation of the defendant, or if there had been a mutual agreement that the cause should not be tried before a particular day, and it had been passed before the day arrived, the defendant would not be entitled to judgment. But here the defendant was ready, and only consented to have the cause passed for the accommodation of the plaintiff, who had two opportunities to try it. The motion must be granted unless the plaintiff stipulates and pays costs.

¶3Ordered accordingly.