A case of negligence is clearly made out. The allegation that the defendants had had the cause reserved on the former calendar ceased to have any force when the plaintiff allowed the cause to go off the calendar altogether. It was not the duty of the defendants, but of the plaintiff, to keep it there. The defendants were not bound to carry on the plaintiff’s suit. . There was negligence in not having the cause retained on the calendar at the commencement of the year. There was still greater negligence in omitting to place the cause on the calendar for February and March, after express stipulation. The authority of Bowles a. Yan Horne,'cited by defendants’ counsel, is satisfactory and conclusive authority. But, here, as in that case, I think sufficient has been shown to warrant the court in allowing the plaintiff an opportunity of trying the cause at the next term, upon terms. What those terms should be, is the question.
Defendant's counsel stated that, in the case of Bowles a. Van Horne, Judge Hoffman had. held that the cause could only be retained on the terms that the plaintiff paid all costs incurred up to that date.
Contra, it was argued that the circumstances were different. Here no neglect could be charged up to the end of the year
1863, while the cause stood reserved by consent of parties.
Daly, J.—I think the negligence commenced on January 1, 1864, and that the penalty ought only to attach during the period over which the negligence extended, namely, the months of January, February, and March. The motion will be granted, unless the plaintiff, within ten days, place the cause on the calendar, and stipulate to try at the next" term, and pay to the defendants costs for the January, February, and March terms, with disbursements, and ten dollars costs of this motion.
Order entered accordingly.