Hart v. Philips

9 Paige Ch. 293, 1841 N.Y. LEXIS 491, 1841 N.Y. Misc. LEXIS 105

Opinion

The Chancellor.

The defendant is not entitled to dismiss the complainant’s bill in such a case as this for want of prosecution. Where the defendant pleads a former decree, or another suit pending for the same cause, or other matter of record in the same court, the reference to the master to enquire and report as to the truth of the plea is a mere preliminary proceeding. And when the report is in favor of the truth of the plea, no further proceedings can be had thereon by either party until the plea has been argued and disposed of in the usual form. If the defendant wishes to expedite the proceedings in the suit, or to have the bill dismissed as improperly hied, he must bring the case on to be heard upon the plea and the master’s report thereon, under the provisions of the 48th rule, to obtain the decision of the court upon the validity of his plea.

Motion denied.