
    SUPREME COURT.
    Fuller agt. Sweet and others.
    Where the plaintiff notices the cause for trial at the circuit, and by agreement of the counsel on both sides, it is set down for a future day in the circuit; and before that day arrives the jury are discharged and the circuit adjourns sine die, it is a waiver by the defendant of a motion for a dismissal of the complaint and for judgment, for not bringing on the trial by plaintiff previous to the cause being set down.
    
      Steuben Circuit and Special Term,
    May, 1853.
    Motion on the part of defendants to dismiss complaint, and for judgment as in case of non-suit, for not proceeding to trial at the Allegany circuit in April last.
    S. Hubbard, for Defendants.
    
    R. L. Brundage, or Plaintiff.
    
   Welles, Justice.

The action was noticed for trial and placed upon the calendar by the plaintiff’s attorney. On Friday of the first week of the circuit, the trial was, by agreement of the counsel, set down by the court for Tuesday of the second week, and so marked upon the calendar by the court. On Saturday of the first week, the jury were discharged, and on Monday following the circuit adjourned without day. This was a waiver on the part of the defendants of any default of the plaintiff in not moving on the trial previous to its being set down on Friday for the following Tuesday; and after it was so set down, there was no opportunity afforded the plaintiff for. bringing on the trial. In this view, it is quite immaterial whether the plaintiff was in default for not trying the cause previous to setting it down for Tuesday of the second week.

The motion is therefore denied, with $7 costs.  