Jacob v. Thompson

80 A.D. 526 | N.Y. App. Div. | 1903

Pbb Cubiam :

We think that the plaintiff’s motion to place the cause on the Special Term calendar should have been denied upon the ground of laches. The action was noticed by both parties for Trial Term and it has there been once tried, and now, after two years of delay, the effort is made to have it taken from the Trial Term calendar and sent to the Special Term. Upon the authority of the following cases, we think that the plaintiff by laches has waived his right to have the issues raised by the answer sent to the Special Term: Tubbs v. Embree (89 Hun, 475); Mackellar v. Rogers (109 17. N. Y. 468); Boyd v. Boyd (12 Misc. Rep. 119; affd., 146 27. N. Y. 403).

The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Laughlin, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.