Hooper v. Beecher

New York Supreme Court

Hooper v. Beecher

13 N.Y.S. 212, 36 N.Y. St. Rep. 812, 1891 N.Y. Misc. LEXIS 1036

DecidedFebruary 11, 1891

StatusPublished

This text of 13 N.Y.S. 212 (Hooper v. Beecher) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hooper v. Beecher, 13 N.Y.S. 212, 36 N.Y. St. Rep. 812, 1891 N.Y. Misc. LEXIS 1036 (N.Y. Super. Ct. 1891).

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Opinion

Van Brunt, P. J.

A new trial of this action having been ordered by the court of appeals, the case was restored to the calendar, and noticed for trial by the defendants for the April term, 1890, and the same duly placed upon the calendar. In August, 1890, an amended complaint was served, and an answer thereto made in October, 1890, and a reply was also served in the same month. On the 8th of December, 1890, the parties filed a stipulation with the clerk, setting the ease down for trial on the second .Monday of January, 1891. When the case was reached upon the calendar of the special term, the plaintiffs served a notice of trial for the first Monday of February, which notice was retained by the attorney for the defendants, and moved to strike the case from the calendar, on the ground that, new issues having been framed, it was necessary to serve a new notice of trial, and to file a new note of issue. The motion was denied, and the case set down for trial on the 16th of January, on which day the motion was renewed and denied, and from the order thereupon entered this appeal was taken. It seems to us clear that, by the giving of the stipulation setting the case down for trial on a given day, the plaintiffs are estopped from asserting that the case was not in a condition to be tried upon the day upon which they agreed to try the same. The objection that the notice of trial was received and retained, and not returned within 24 hours, cannot avail the appellants, because they had notice, at the time of the service of this notice of trial, that the defendants were insisting upon the trial, and claiming the right to a trial, because of the stipulation made in December, 1890, and that the right to a trial did not depend upon the service of a new notice of trial. This was giving the plaintiffs clear and definite notice that the notice of trial which was then served would not be recognized, and he was not in any degree misled by reason of its retention. We think, therefore, that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.

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Van Brunt, P. J.

A new trial of this action having been ordered by the court of appeals, the case was restored to the calendar, and noticed for trial by the defendants for the April term, 1890, and the same duly placed upon the calendar. In August, 1890, an amended complaint was served, and an answer thereto made in October, 1890, and a reply was also served in the same month. On the 8th of December, 1890, the parties filed a stipulation with the clerk, setting the ease down for trial on the second .Monday of January, 1891. When the case was reached upon the calendar of the special term, the plaintiffs served a notice of trial for the first Monday of February, which notice was retained by the attorney for the defendants, and moved to strike the case from the calendar, on the ground that, new issues having been framed, it was necessary to serve a new notice of trial, and to file a new note of issue. The motion was denied, and the case set down for trial on the 16th of January, on which day the motion was renewed and denied, and from the order thereupon entered this appeal was taken. It seems to us clear that, by the giving of the stipulation setting the case down for trial on a given day, the plaintiffs are estopped from asserting that the case was not in a condition to be tried upon the day upon which they agreed to try the same. The objection that the notice of trial was received and retained, and not returned within 24 hours, cannot avail the appellants, because they had notice, at the time of the service of this notice of trial, that the defendants were insisting upon the trial, and claiming the right to a trial, because of the stipulation made in December, 1890, and that the right to a trial did not depend upon the service of a new notice of trial. This was giving the plaintiffs clear and definite notice that the notice of trial which was then served would not be recognized, and he was not in any degree misled by reason of its retention. We think, therefore, that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.

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Bluebook (online)

13 N.Y.S. 212, 36 N.Y. St. Rep. 812, 1891 N.Y. Misc. LEXIS 1036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hooper-v-beecher-nysupct-1891.