General
Beriah Palmer, Philip H. Schuyler and Joshua Nelson v. Amos Mulligan, Herman Moody, Noadiah Moody and William Gates
1 Cole. & Cai. Cas. 360·New York Supreme Court·1804·NY
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Opinion
Beriah Palmer, Philip H. Schuyler and Joshua Nelson v. Amos Mulligan, Herman Moody, Noadiah Moody and William Gates.
VAN 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 the same point. That in the other, a verdict had been given against the plaintiffs, contrary to the opinion and charge of the judge before whom the cause had been tried, for which reason the present suit had not been brought on, and a case was made in that which had been heard, and was now before the court.
Van Antwerp, in reply.
A case ought to have been made in the other cause. As it has not been done, it is a waiver of intention to rest on the point in the other : the plaintiffs must, therefore, pay costs and stipulate, or we must have have our judgment.
[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 the plaintiff to stipulate.
Spencer, J.
I think they ought to stipulate. There is a verdict in favour of the defendants which, till the contrary is shown, we ought to think correct* ly given.