Defendant’s counsel insisted that they had been misled, in not finding the cause on the calendar; the plaintiff’s attorney should have given notice that he was going to place it upon the calendar.' And further, that *the notice of trial served on defendant’s attorney for the May circuit, when defendant’s attorney was not aware of its being on the March calendar, was especially calculated to mislead. Defendant’s counsel cited the case of Faulkner agt. The Mayor, &c., of Brooklyn (2 How. 151), decided by Mr. Justice Beards*168ley, to the point that the notice of trial served for the May circuit, before the close of the March circuit, should have contained the reservation therein mentioned, to wit: “ in case the cause is not tried at the present circuit.”
Jewett, Justice.Granted the motion on payment of the • costs of the circuit and subsequent proceedings, and $7 costs of opposing motion, and expressed his opinion in favor of the suggestion of Mr. Justice Beardsley in the case cited.