Lightbody v. Potter

10 Wend. 534

• Court: New York Supreme Court
• Decided: July 15, 1833
• Status: Published

Opinion

By the Court,

Nelson, J.

It is clear that at the time of the

commencement of this suit, the plaintiff had a good and sub-sls^nS cause of action against the defendant, and unless it has subsequently been extinguished, he is entitled to recover. The set off of the plaintiff’s cause of action in the suit commenced by the defendant before the justice, and the judgment rendered by the justice, operated as an extinguishment whilst such judgment remained unreversed. The judgment of the common pleas, however, on appeal, removed the bar to the recovery in this suit, and revived the demand of the plaintiff as a subsisting demand in this court. Instead of Potter having a judgment against Lightbody, set up in the plea as a defence to this action, the latter has a judgment against the former on appeal, which, upon well settled principles, operates as a reversal of the judgment before the justice. The judgment rendered on appeal, as set forth in the replication, is in the form of a judgment of nonsuit. If there was any thing in the proceedings or in the trial on the appeal, which, notwithstanding the judgment for Lightbody, would shew the extinguishment of the note in question, the defendant here should have rejoined such matter; his plea would, then have been sustained. As the pleadings stand, the replication is a perfect answer to the plea of puis darrien continuance.

Judgment for plaintiff

GENERAL RULES.

I. Whenever either party shall intend to move to set aside a report of referees, he shall give due notice of such motion at the next term after such report of referees shall be signed, together with a copy of the affidavit or affidavits on which such motion will be founded. If the party on whom such motion and affidavits shall be served, shall be dissatisfied with the facts as stated in the affidavits served upon him, he shall within ten days serve his opposing affidavits upon the party making the motion. If such opposing affidavits contradict any material fact in the affidavits on which the motion is founded. either party may, within ten days after the service of such opposing affidavits, give notice of at least eight days, of appearance before the referees for the purpose of settling the facts. The referees, upon being served with the affidavits on both sides, and hearing counsel if desired, at the time and place designated for that purpose in such notice, shall make a full report of the evidence and their proceedings upon the reference. Such report will be conclusive evidence of the facts stated, and upon it the motion to set aside the report will he determined.

II. All copies of cases, error books, demurrer books, bills of exceptions, and special verdicts, shall be numbered by the folio, and the lines of each folio numbered so that they shall correspond.

*

Whenever a party, bound to serve his adversary with a demurrer book, error book, or the like, omits or neglects to serve the same within the time limited by the rules of court, the party entitled to such demurrer book, &c. may give notice to the other party that he will apply to the court on an affidavit of such omission or neglect, on either the first Monday, first Thursday or second Friday of term, to strike the cause from the calendar (whether placed there by himself or his adversary) and to render judgment in his favor. If the cause he called previous to the day for which such notice is given, the court passes it without prejudice until the motion can be heard, and when heard, unless the party charged with being in default excuses himself, the motion is granted. The reporter has deemed it his duty to state this point of practice, as there is mo decision published establishing such to be the practice of the court, al» (though it has been invariably adhered to for several years past. The practice was settled on a full review of the cases in 16 Johnson, 2, 6 Cowen, 609, sad 4 Wendell, 186.