Farnam v. Despard

1 Wend. 287

• Court: New York Supreme Court
• Decided: October 15, 1828
• Status: Published

Opinion

By the Court,

Sutherland, J.

It was undoubtedly the duty of the attorney to watch bis cause; but it seems the bar generally were misled by the circumstance of criminal cases set down for trial not coming on. Notwithstanding that the inquest was regularly taken, the plaintiff’s attorney ought to have waived it on the offer of the payment of costs. The state of the calendar had not been changed, and there -was every probability that the plaintiff would have had an opportunity to try his cause at that circuit, and such is proved to have been the result, as junior causes were subsequently tried. Under these circumstances, the inquest must be set aside, and to discourage the disposition of making costs, by insisting upon advantages of this kind, the court direct the costs of the circuit and of this motion to abide the event of the suit.