Duncan v. De Witt

49 How. Pr. 131

• Court: New York Supreme Court
• Decided: June 15, 1875
• Status: Published

Opinion

Donohue, J.

In this case both the parties reside in Hew Jersey; the subject-matter of the action is in Hew Jersey. Under these circumstances, unless there are facts showing a good reason for opening the default, the parties should be allowed to litigate in that state. It seems to me that the case does not show such a state of facts as would entitle the plaintiff to the relief he asked. The action of the plaintiff in the call of the case at circuit, rather impressed me with the feeling that plaintiff did not intend to try his cause when the jury had been sworn in the cause and no valid excuse for putting off the case with a number of witnesses in court from Hew Jersey. As a pure matter of favor, and with the notice that the cause must be tried when again called, the cause was put over; and when again called, an untruth was told to procure a further adjournment. To allow this default to be opened, would be simply to encourage a bad practice. Motion denied, with costs.