delivered the opinion of the Court :

The only question presented arises under the 6th section of the practice act of 1827. (1) We are of opinion, that the Court improperly dismissed the cause. The plaintiff had filed his declaration, and, so far, complied with the act. The omission to file the account, was not a sufficient reason for the dismissal. The cause might have been continued for a refusal or omission to file the account, but until a rule had been obtained requiring the plaintiff to file the account, and there had been a failure to comply with such rule by the defendant, the cause should not have been dismissed. We do not think the Court should have so summarily dismissed the cause.

The party was entitled to time and notice ; besides, the dismissal is bad at a special term, and it is possible the party did not anticipate proceedings would be had in the suit, or he may have had no notice of the term.

The judgment is reversed with costs, and cause remanded, with leave to the plaintiff to file an account, and to proceed in the cause.

Judgment reversed.

Note. See The People v. Pearson, 1 Scam. 459, 473.