Asinari v. Volkening

2 Abb. N. Cas. 454

• Court: New York Supreme Court
• Decided: June 15, 1877
• Status: Published

Opinion

Barrett, J.

The motions are still irregular, in that there was a stay of proceedings in the order to show cause, which, under the rule, could only be granted on two days’ notice.

* But further, the motion was not to be let in upon the merits and upon terms, but strictly to vacate the proceedings for irregularity. How, there was no irregularity, as the order extending time to answer was not properly served, and was properly returned. Then the motion to vacate was dismissed by default, with costs, and these costs were not paid. The motion to open that motion default ought not to be granted to permit a motion to vacate for irregularity. It would have been otherwise, perhaps, if there had been in the present order to show cause an appeal to the favor on the merits of the cause. But, although that was argued before me, it was not embraced in the order to show cause, and is therefore not up. The motion must therefore be denied, with $10 costs.

Rule 81. “ No order to stay a sale under a judgment in partition, or for tlxe foreclosure of a mortgage, shall be granted or made by a judge out of court, except upon a notice of at least two days to the. plaintiff’s attorney.”