The New York herald., 1866-12-16
SUPREME couRT-ceneRAl TERN.

The Chrisfy Will Case-Order Affirmed DENY.
inE a Motion for = Now Triai-Inpereant
Opinion, &c.
Present. Judges Barnard, Ingraham and Clerke.
In this case an issue ordered try tho question a.
TO the validity Of will which had been admitted to pro-
bate by the Surrogate and his decree reversed by tho
General Term. That issue duly noticed for trial for
the June Circuit II called for trial in it's order
when the defendants' counsel applied for postpone
defendants 10 the plaintiff the costs and expenses Of
June term incurred In the preparation for trial.
served on aaa v @ saos % eos a
adjustment by the clerk The adjustment Of the costs
was adjourned twice by the Of Of the ator-
ney and afterwards he failed to appear, and the
amount was adjusted by the clerk copy Of the bill
was served with notice Of demand for pavuaent NO
Judge holding the circuit he ordered Tho cause 70 be
placed on the day calendar for trial. On the day SO
fired the plaintiff took verdict the defendants not
pearng Between the time Of postp,nng the trial and
the taking OF the verdict negotiations pending for
compromise and about the time Of taking the verdict
the defendant Clark applied for retaxation OF on
the ground Of their having been eguary taxed There
is dispute between the parties to tho time when
this notice served IL being dated on I'd or July,
while the envelope is pos,marked Sd Jolly, and the
plaintiffs attorney ewears It received after
the verdict had been taken. motion made ~
denied, and the defendants appealed TO The General
Term There is rreguarity shown IN taking tho ver
OF costs II was the duty OF the defendants TO have
paid them, II they wished the benefit Of the order post
s Rs nSc.
top, one OF the Defendants who acted counsel in the
cause appeared ,wcc and consented to adjournment.
thereto With tho bill notice served TO have the
same paid or the plaintiff would apply to the ror
cult We see no irresular,y in this conrss Tn The de-
PENDANTS know they were not complying with the order
OF the COURT and having had nocs that the plaintiff
would apply TO have the cause restored to
the calendar, should s least have pad som
attention to Il. Bnt even II there had been
Of u, because such rrcguarty 10 stated in the notice
Of motion We are left. then, 70 connder this upon
snta appears to be- that peSotiason FOR comnro,nss
Of tho matter failed What that negotiation was or why
failed is not stated but this furnishes ground
negectng either the payment Of costs attending
the cause after notice had been given of having I
restored TO the calendar In or this kind as well
70 granting new trials s different from thai OF
tho ordinary practice Of the court, even where
srror : g alleged 70 have been committed on the
Murdock, ! T. w. Oh. Rp. Il, q Russell ssl
Ia these and In many other tho rule has been laid
the court 10 satisfied that justice has antiay
DONE new trial will not be granted That such Ia the
case IN the present instance We hsve little doubt When
this case was before appeal from the Sprroraes
decision, after full examination OF all the evidence We
were clearly OF the opinion that the paper proposed
viii should not have been admitted to probate the
was sent 20 jury because the statute ordered II the
court could have held the evidence sufcisn, TO
one Ss ys % ,na Ind the o.
views ihen entertained, and wc think justice has
been done by the finding of tho Jury. Indeed u is
hard 10 suppose that jury could be led 10
tain win mnde under such circumstances, which
deprived wife and children Of share in tho fathers
property and gave % another, and especially while
tho vile and children were not allowed access 10 the
husband and father drring his sickness might add
also that on the merits the granting The refusing
new trial II matter OF discretion At The Sp"cia Term
and especially 80 IN setting aside inquest and under
ordinary circumstances Is no, arrealable We think,
therefore, there ground for setting aside this
dict on the merits; that the shows of facts
upon which any other verdict could scarcely be sustain
ed, and that continuance Of this litigation would only
serve 10 waste OF the catase among those condrrt
ng tie litigation without resitIng In any good the
parties themselves. II the deviscc named in the will
can establish her relation 70 the deceased, ehs has
right TO claim her share OF the eetats n
whatever 70 participate In H. Tho order appealed from
should Be- affirmed