Lisher v. Parmelee

1 Wend. 22

Opinion

By the Court,

Woodworth, J.

The motion is denied, with costs to be paid by the plaintiff. Under the peculiar circumstances of these cases, the notices of trial served on the 31st March were insufficient, as not apprising the defendant of the causes intended to be tried ; and when, on the evening of the 1st April, the notices were made definite, the defendants had but five full days left, in which to prepare for trial. The plaintiff had held the defendants t o the strictest practice, by giving notice at the latest possible moment, and he should have seen that the notice thus given was perfect, as to the end for which notice is given. He is therefore not entitled to costs for preparing for trial, nor can he ask costs for the omission of the defendants to follow up their notice of motion to this court. They could have no motive in pursuing that notice, but to fix a bill of costs upon the plaintiff. The notice, accompanied with the order to stay proceedings, had effected the object of the defendants, by relieving them from the necessity of proceeding to trial without due notice, and the opinion now pronounced shows that had the defendants made their motion and not countermanded it, they would have succeeded. The plaintiff, therefore, instead of being injured, is benefitted by the countermand.

Motion denied.