Schroeder v. Kohlenback

6 Abb. Pr. 66

• Court: New York Court of Common Pleas
• Decided: January 15, 1858
• Status: Published

Opinion

By the Court.

Daly, J.— The Code having authorized either party to notice the cause for trial, there was no occasion for the 23d rule of the Supreme Court Eules of 1849, which authorized the defendant to move for a dismissal of the complaint where the plaintiff failed to bring the cause to trial, and it was accordingly left out in the revision of the rules in 1854. The defendant may now notice the cause for trial, and either bring it to trial, or have the complaint dismissed ; and if he fails to do so, he is as much in neglect as the plaintiff. In the former action of replevin, the defendant was, as he is now, an actor; and in that action it was well settled that the defendant could not move for judgment as in case of nonsuit, for the neglect of the plaintiff to bring the cause to trial, pursuant to his notice. (Poltz v. Curtis, 9 Wend., 497.) Section 274 authorized a motion to dismiss the complaint; but that applies only to cases where there is no other mode to compel the plaintiff to proceed. I think, therefore, that the motion at the special term was improperly granted, and that the order should be reversed.

Order appealed from reversed.