The Code of procedure of the State of New York, as amended to 1873; with notes on pleading and practice, rules of the courts, and a full index

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1873 Excerpt: ...8 Paige, 45; Georgia Lumber Co. v. Bissell, 9 Paige, 226; Tracy v. Reynolds, 7 How. 827. See ante, p. 148 c). d. A motion for judgment for not serving a copy of the complaint must be made in the district, or a county adjoining the county in which the summons states the complaint will be filed (Johnston v. Bryan, 5 How. 855). e. Df«misiiig complaint for not proceeding to trial. (See Rules 26, 27.)--Where a defendant notices the cause for trial, and omits an opportunity to move it at the circuit, he cannot afterward move for a dismissal of the complaint for the plaintiff's neglecting to proceed to trial (McCarthy v. Hancock, 6 How. 28; Miller v. Sing, 18 Abb. 244; Fuller v. Sweet, 9 How. 74). /. Either party may give notice of hearing; and where both parties notice the cause, neither can charge delay or default upon the other for not bringing the cause to a hearing (Thompson v. Krider, 8 How. 248; Moetter v. Bailey, 14 id. 859; but see Bowles v. Van Home, 11 Abb. 84). The fact that a defendant has had the cause reserved, generally does not make it his duty to keep it upon the calendar, and if the plaintiff suffers the case to go off the calendar, the defendant may move to dismiss for want of prosecution (Corbett v. Clqflin, 17 Abb. 418). g. If the plaintiff, in an action of claim and delivery, in which issue has been joined, neglects to bring the cause on for trial, the proper course for the defendant is to notice the cause himself, and bring it on. An order that the complaint be dismissed, unless the plaintiff bring the cause to trial within a specified time, is improper in such a case (Schroeder v. KohUnback, 6 Abb. 66; Wilton v. Wheeler, 6 How. 49; but see Roy v. Thompson, 8 How. 253; 1 Duer, 636). h. It is no sufficient answer to a motion to dismiss ...