Morris v. Crawford

16 Abb. Pr. 124

Opinion

Ingraham, J.

From the decisions, I conclude that the better practice, in a case where the cause is not at issue as to all the defendants, and the plaintiff does not proceed as to those who have not answered, is for the other defendants to move at chambers to dismiss the complaint as to them. The case of Ward a. Dewey (12 How. Pr., 193) holds it to be irregular in such a case for one of the defendants to notice it for trial. There may be good reasons why the party should be put to his motion. The plaintiff would then have the opportunity of showing any excuse which he might have for not proceeding. This he Could not do at the trial.

The order below should be reversed, and an order granted setting aside the dismissal of the complaint, without costs, and with leave to defendants to move at chambers for relief.

Sutherland, P. J., and Clerke, J., concurred.