Haven v. Meteer

3 Misc. 617

Opinion

Per Curiam.

The appellants claim that the defendants had no right to move to dismiss the complaint on the nonappearance of the plaintiff, because there was no proof' of a service of notice of trial by defendants upon plaintiffs.

Actual proof was not necessary, nor indeed was service. Without objection, both parties being present, the case was set down for trial and the day was chosen, so that the plaintiff might examine the defendant before trial. The defendant gave consent to the examination. This called the defendants into the trial, so that the plaintiffs could not object afterwards that they had had no notice of trial from the defendants. The facts of the case were so peculiar that the discretion of the court below, as to costs, cannot be reviewed.

Order affirmed, without costs.