¶1This is an action of replevin. The defendant moved for judgment as in case of nonsuit, for the default of the plaintiff to bring the cause to trial, pursuant to a notice of trial given by the plaintiff. In answer to the motion, it was objected that in this action, both parties being actors, the defendant cannot move for judgment as in case of nonsuit, except in the case specified in the revised statutes, viz. “ where neither party shall have noticed the cause for trial.” 2 R. S. 530, § 46. The objection was sustained by the court; the Chief Justice observing that the proper course of the defendant would have been, to have asked for costs against the plaintiff for not proceeding to trial pursuant to notice, but that he was not entitled to judgment as in case of nonsuit. The motion was denied.
9 Wend. 497
Poltz v. Curtis
Decided April 15, 1833
New York Supreme Court · decided 1833-04-15
<p>A defendant in replevin cannot move for judgment as in case of nonsuit, where the plaintiff notices the cause and neglects to bring it to trial; he . may however move for costs for not proceeding to trial pursuant to the notice.</p> <p>It is only when neither party notices the cause for trial, that the defendant can move for judgment as in case of nonsuit.</p>
Decided 1833-04-15