Plaintiff’s excuse for leave to stipulate to try a second time.
Motion by defendant for judgment, as in case of nonsuit, after stipulation.—Plaintiff’s excuse for not trying is, that about four weeks previous to the circuit one of his material witnesses left for Michigan and some [65 others of the Western States, and has not yet returned, but is expected to return this season. Soon after serving notice of trial in the cause, plaintiff ascertained said witness had gone, and immediately countermanded the notice.
R. W. Peckham, Lefts Counsel. Thos. H. Flandran, Lefts Atty.
J. Edwards, Plffs Counsel. W. & C. Tracey, Plffs Attys.
The excuse is sufficient for plaintiff to renew his stipulation.
Decision.—Motion granted unless plaintiff renew his stipulation to try at the next Oneida circuit, and pay costs of circuit up to notice of countermand, and ten dollars costs of this motion.
1 How. Pr. 63
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