Palmer, Schuyler and Nelson against Mulligan, H. and N. Moody and Gates

Palmer, Schuyler and Nelson against Mulligan, H. and N. Moody and Gates. If two causes turn on the same point, and a verdict be given in one on which a case is made, it is enough to prevent judgment as in case of nonsuit for not proceeding to trial in the other, or a stipulation, but will not excuse costs.. Tan Antwerp, on the common affidavit, moved for judgment as in case of nonsuit for not proceeding to trial. Woodworth, contra, stated, that this was one of two.causes depending on tbe same point. That in tbe other, tbe verdict bad been given against tbe plaintiffs, contrary to tbe opinion and charge of tbe judge before whom tbe cause bad been tried, for which reason tbe present suit had not *been brought on, and a case was made in that which bad been heard, and was now before tbe court. Van Antwerp, in reply. A case ought to have been made in tbe other cause; as it has not been done, it is a waiver of any intention to rest on tbe point in the other; tbe plaintiffs must, therefore, pay costs and stipulate, or we must have our j udgment. [MAJORITY — Per Curiam,. Spencer, J.] Per Curiam,. You are entitled to costs, but as there is a sufficient reason for not proceeding to trial, we shall not oblige tbe plaintiffs to stipulate. Spencer, J. I think they ought to stipulate. There ia a verdict in favor of the defendants, which, till the contrary is shown, we ought to think correctly given. Motion denied.