Poltz v. Curtis

9 Wend. 497

Opinion

This is an action of replevin. The defendant moved for judgment as in case of nonsuit, for the default of the plaintiff to bring the cause to trial, pursuant to a notice of trial given by the plaintiff. In answer to the motion, it was objected that in this action, both parties being actors, the defendant cannot move for judgment as in case of nonsuit, except in the case specified in the revised statutes, viz. “ where neither party shall have noticed the cause for trial.” 2 R. S. 530, § 46. The objection was sustained by the court; the Chief Justice observing that the proper course of the defendant would have been, to have asked for costs against the plaintiff for not proceeding to trial pursuant to notice, but that he was not entitled to judgment as in case of nonsuit. The motion was denied.