
    Purdy, Executor of Purdy, against Purdy.
    Executor allowed to discontinuo without costs, on motion, after having stipulated to try, and noticed his cause for trial, but omitting to try it because he discovered at the circuit that, he could lwi succeed j :: also appearing that the action was commenced in good faith.
    A cross motion for judgment as in case of nonsuit denied, without costs.
    J. Pierson moved for judgment as in case of nonsuit, for not proceeding to trial, pursuant to notice, at the last Rensselaer Circuit. The plaintiff had stipulated to try at that Circuit.
    
      H. P. Hunt, contra,
    read an affidavit showing that the cause had been commenced and prosecuted in good faith, till the last Rensselaer Circuit, when the plaintiff discovered for the first, on the examination of a witness sworn in a. cross cause by the. defendant against the plaintiff, that the action in this cause could not be sustained ; and moved for leave to discontinue without costs.
   Curia.

The motion to discontinue without costs must he granted. The case comes within the principle of Morse v M'Coy, (4 Cowen, 551.) The motion for judgment as in case of nonsuit is denied, without costs.

Rule accordingly.  