Brady v. Lovell

29 Misc. 775, 61 N.Y.S. 504

• Court: City of New York Municipal Court
• Decided: November 15, 1899
• Status: Published

Opinion

Fitzsimons, Ch. J.

It appears that the order of August 18, 1899, entered herein, failed to contain an affidavit used by defendant upon the motion then before the court, said order was made and entered without notice to plaintiff’s attorney; and under rule 3, General Rules of Practice, such order was irregular and upon proper application, should have been set aside with costs. Defendant, in our opinion duly, applied for such relief (see order to show sáme dated August 23, 1899) upon the hearing of the last-mentioned motion his application was denied, with costs (order of August twenty-sixth) in' a judgment both the orders are wrong. Plaintiff’s practice in moving to set aside the order of August eighteenth was correct and his application should have been granted; if such order had been entered upon due notice to him then if anything was irregular about it, he might have moved to resettle, but such order having been obtained without notice to properly move to have the same set aside. See rule 3.

The orders, therefore, of August eighteenth and twenty-sixth must be set aside, with ten dollars costs to appellant.

Conlan and McCarthy, JJ., concur.

Orders reversed, with ten dollars costs to appellant.