
    *Torrey against Morehouse.
    Where the plaintiff was under a stipulation to try a cause, but countermanded the notice- of trial-, on account of an epidemic prevailing in the city of N ew York, where the .cause was to be tried, which- prevented his being prepared for trial, the court refused to grant the rule for a nonsuit. ...
    The plaintiff’s attorney residing in New'York,' and not having time to'-prepare, ■ in order to oppose a motion to be made at Albany, on the first day of term, bf which six days notice had been given, was held a sufficient excuse for • hot opposing the motion on the first day.
    Where a regular proceeding is set aside on motion, the party applying must pay costs.
    The plaintiff was under a previous stipulation to try this .baüse at the last sittings in New York,
    On the first day of the present term, Riggs, for the defendant, moved for a rule for judgment as in case of nonsuit; having given six days notice of the motion, and no person appearing to oppose it, it was granted of course. ,
    
      Coleman
    
    now moved to' set aside the judgment, on an affidavit, stating that the cause was noticed for trial at the last sittings in New York,' and countermanded, because the plaintiff had every reason to expect That "he could not then be prepared for the trial on account of the interruption to business occasioned by the epidemic which prevailed' in the city. It' was also shown, that the plaintiff had offered to try the cause, and would probablyfiave done so after the sittings commenced, if he-could regularly have brought on the trial. . - •'
    
      Riggs, for the" defendant,
    farther objected, that if the excuse were otherwise sufficient, which he did not admit, it -ought to^have been made off the first day of the term, and could not now be received to set aside the judgment then entered. -
    
      Coleman
    
    answered, that the distance of his residence in New York, and the short notice of the motion prevented him from being in readiness to oppose it on the first day.
   Per Curiam.

We think the reason for countermanding the notice of trial under the circumstances of the case, was sufficient, notwithstanding.the plaintiff’s stipulation ] and considering the shortness of the notic,e of the motion for a nonsuit, and the distance of the residence of the plaintiff’s attorney at New York, we also think the excuse for not op. posing it on the first day, ought to be admitted. But the judgment being regular it is set aside on payment of costs by the plaintiff.

Rule granted, on payment of costs. 
      
       Sickness, or inevitable accident, constitutes a sufficient excuse for not going to trial pursuant to stipulation. Jackson v. Wakeman, 2 Cowen, 578, Thus, where a material witness for the plaintiff, unexpectedly, and without the knowledge of the plaintiff or his attorney, went abroad, so that he could not be subpoenaed at the trial, it Was held a sufficient excuse for the plaintiff’s not proceeding to trial pursuant to his stipulation ; Nixon v. Hallet & Bowne, infra, vol. 2, p. 218;—that the witness who was a seafaring man, had been constantly out of the state after the suit was commenced; Livingston v. Delafíeld, 1 Caines’ R. 6;—and that the' plaintiff who was under a peremptory undertaking to try, Was prevented from trying in person, by being arrested, 2 Dowl. Pr. Cas. 226, were held excuses. The absence of counsel, however, on professional business, is not allowed as an excuse. Jackson v. Wakeman, ut supra. See also 2 Gra. Prac. 2d ed. 620.
     
      
       Gra. Prac. 2d ed 682.
     
      
       Id. 684.
     