Hart v. Philips

1 Sarat. Ch. Sent. 70, 1841 N.Y. LEXIS 416

Opinion

Motion by the defendant Philips to dismiss the bill for want of prosecution denied, with costs. In this case the chancellor decided that where a defendant pleads a former decree, or another suit pending in this court for the same cause, etc., and obtains the master’s report in favor of the truth of his plea, he is not entitled to an order to dismiss the bill for want of prosecution, or otherwise, upon motion, until the plea is argued and disposed of. But if he wishes to expedite the proceedings in the cause, or to have the bill dismissed as improperly filed, he must bring the ease on to be heard upon the plea and master’s report, under the provisions of the 48th Rule, to obtain a decision of the court upon the validity of such plea.