
    
      Livingston v. Delafield.
    
    THIS cause had been put off on the usual affidavit of absence of a witness, in expectation of whose return the plaintiff had stipulated to try peremptorily: on his not doing so, the defendant had, on a former day, moved for judgment, as in case of nonsuit, for not proceédíng to trial ; but not succeeding, and the cause not having been brought on according to the second stipulation, the motion was now repeated. On the part of the plaintiff, an affidavit was read, stating that the witness was a seafaring man, and had never-been within the state of New* York since the suit commenced, and that the stipulation to try was in expec - tation of his return.
   Per Curiam.

The witness having been constantly out of the state ever since the suit was commenced, and being a seafaring man, some indulgence is due from his way of life. The defendant, therefore, can take nothing by his motion.  