
    Jackson, on the demise of Rodman, against Brown.
    The sudden indisposition of counsel and attorney, is an excuse for not proceeding to trial, but will not exempt from costs.
    Spencer
    moved for judgment as in case of nonsuit, for not proceeding to trial. The notice was served on the first day of term, for argument on this. . The affidavit accounted for its not being noticed for the first day, by stating that it had been delivered, on the 26th of July, to a person who was then about leaving Hudson for Albany, but who had either lost it, or left it behind with some papers of his own.
    
      Van Vechten
    
    opposed the motion, by an affidavit of the indisposition of both attorney and counsel in the cause, when too late to employ others.
    The cause was countermanded, but, after the circuit,
   Per Curiam.

The excuse is sufficient to prevent granting the judgment applied for, but the plaintiff must pay the costs of not proceeding to trial. It was a misfortune, it is true, that the parties should have been afflicted with sickness, but it is a misfortune that ought not to fall on the defendant.

Motion denied on paying costs.

Lewis, Ch. J., absent. 
      
      
         Rogers r. Harrison, 2 Caines’ Rep. 379. Steinbach v. Hallett, 1 Johns Rep. 141.
     