This is an application to set aside an order of nolle pros for failure to prosecute, made on the opening day of the present term, in the above-entitled action. The ground upon which the application is made is that the plaintiff had given notice of appeal to the Court of Errors and Appeals from an order of the Supreme Court making absolute a rule to show cause why a new trial should not be granted (the plaintiff in the court below having obtained a verdict and judgment thereon), and that he conceived that the defendant would not press the motion for nolle pros.

The communications between the parties bearing upon the subject are in writing, and an examination of them convinces us that the plaintiff had no justification for this attitude of mind, and was in nowise misled by any act of counsel for the defendant. The latter had given notice of a motion to dismiss and this motion was never withdrawn. It is true that counsel for the plaintiff had given notice of an appeal as above stated, but his right to appeal from such an order was at once challenged by his adversary on the ground that such an[*31] appeal would not lie. No assurance was given, that the motion to dismiss would be withdrawn, or that it would not he pressed. We think the present position of the plaintiff is due entirely to his own default.

The motion to vacate the order of nolle pros is denied.