Jacob v. Thompson

80 N.Y.S. 1028

Opinion

PER CURIAM.

We think that the plaintiff’s motion to place the cause on the Special Term calendar should have been denied upon the ground of loches. The action was noticed by both parties for Trial Term, and it has there been once tried, and now, after two years of delay, the effort is made to have it taken from the Trial Term calendar and sent to the Special Term. Upon the authority of the following cases, we think that the plaintiff, by loches, has waived his right to have the issues raised by the answer sent to the Special Term: Tubbs v. Embree, 89 Hun, 475, 35 N. Y. Supp. 320; Mackellar v. Rogers, 109 N. Y. 468, 17 N. E. 350; Boyd v. Boyd, 12 Misc. Rep. 119, 33 N. Y. Supp. 74, affirmed 146 N. Y. 403, 42 N. E. 542.

The order must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.