Duclos v. Kelly

122 A.D. 361, 106 N.Y.S. 1085, 1907 N.Y. App. Div. LEXIS 2439

Opinion

Sewell, J.:

It is undisputed that the order of the seventeenth of March and the papers upon which it was granted, including the exhibits filed as therein directed, were referred to upon the argument and presented to the court by the defendant’s counsel in opposition to the motion, and it appears by the affidavit of the plaintiff’s counsel, used and filed in the motion for resettlement, that upon the argument the county judge suggested to defendant’s counsel that he doubted his power to grant the order of March seventeenth.

This serves to show that the order of the seventeenth of March and the exhibits filed, as and for the returns, were before the court and were considered and used on the motion to dismiss the appeal. This being so, the appellant was entitled, under rule 3 of the General Rules of Practice, to have them'recited in that order.

It follows that the order should be reversed, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements.