Brain v. Rodelicks

New York Supreme Court

Brain v. Rodelicks

1 Cai. Cas. 73

DecidedMay 15, 1803

StatusPublished

This text of 1 Cai. Cas. 73 (Brain v. Rodelicks) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brain v. Rodelicks, 1 Cai. Cas. 73 (N.Y. Super. Ct. 1803).

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Opinion

IN this caufe it was neceffitry to examine a witnefs in the Havannah ; and, as that port was open only to certain privileged veffels, in April 1802 a rule for a commiffion was granted before iffue joined, to prevent lofing an opportunity of iranfmiffion which then prefented itfelf. No return having been made, the caufe was noticed for trial for the laft fittings in March 1803, -when the defendant’s attorney, feeing fome witneffes in the court, whofe abfence, he feared, might delay the caufe after the return of the commiffion, appeared and examined them ; ftating however, the circumftances of his cafe, and that he begged to be confidered as acting without prejudice to his future rights. He now moved to fet aiide the [74]*74verdict, with coils; the plaintiff having proceeded to trial with» . , . r r r out vacating the rule tor the commiilion.

Per curiam. When a rule for a commiffion has been obtained, it fufpends the caufe till, on application to the court, a vacatur be ordered and entered. But if the defendant appear and examine witneffes, it is a waiver of his commiffion, and the vacatur is unneceffary. The motion muff be refufed.

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IN this caufe it was neceffitry to examine a witnefs in the Havannah ; and, as that port was open only to certain privileged veffels, in April 1802 a rule for a commiffion was granted before iffue joined, to prevent lofing an opportunity of iranfmiffion which then prefented itfelf. No return having been made, the caufe was noticed for trial for the laft fittings in March 1803, -when the defendant’s attorney, feeing fome witneffes in the court, whofe abfence, he feared, might delay the caufe after the return of the commiffion, appeared and examined them ; ftating however, the circumftances of his cafe, and that he begged to be confidered as acting without prejudice to his future rights. He now moved to fet aiide the [74]*74verdict, with coils; the plaintiff having proceeded to trial with» . , . r r r out vacating the rule tor the commiilion.

Per curiam. When a rule for a commiffion has been obtained, it fufpends the caufe till, on application to the court, a vacatur be ordered and entered. But if the defendant appear and examine witneffes, it is a waiver of his commiffion, and the vacatur is unneceffary. The motion muff be refufed.

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Bluebook (online)

1 Cai. Cas. 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brain-v-rodelicks-nysupct-1803.