Campbell v. Munger

This is a motion for a nonsuit for not pro *184ceéding to trial at the last circuit in Saratoga. The plaintiff’s attorney thought it unnecessary, until the opinion given by the judge could be reviewed by this court, to bring on the trial of this cause; and he swears that “ it was un derstood, and agreed, between the defendant’s attorney and himself, that a decision in the cause tried should be conclusive in the other, and that, thereupon, shortly after the trial, the witnesses of both parties were dismissed.”

Without relying much on the agreement of the attorneys, which was not in writing, the court think the plaintiff has accounted satisfactorily for not bringing this cause to trial. He noticed it in good faith, and appears to have been prepared to try it, but finding the opinion of the judge against him in another cause embracing the same question, and depending on the same evidence, [*131, 132, 133] it would have been folly *in him to proceed in the others until the judgment of this court could be had. [1] We think, therefore, that he ought not to stipulate, and that the costs for not proceed- ■ ing to trial abide the event of the suit tried.

Judgment of nonsuit refused.