We think the reason for countermanding the notice of trial under the circumstances of the case, was sufficient, notwithstanding.the plaintiff’s stipulation ](a) 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.(b) But the judgment being regular it is set aside on payment of costs by the plaintiff.(c)
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.