In re Myers

3 How. Pr. 234

• Court: New York Supreme Court
• Decided: February 25, 1848
• Status: Published

Opinion

Willard, Justice.

The order applied for in this case, is one which the chancellor, according toa the practice of that court, might grant out of term. (See Rule 4, of Chancellor Walworth.) It is an ex parte order. The 16th section of the act to amend the act in relation to the judiciary, (Laws of 1847, 2d vol. p. 641,) confers upon a justice of this court, residing within one hundred miles of the county where the solicitor or party making the application resides, the like power as that possessed formerly by the chancellor, to grant such orders either in term or vacation, at chambers, or at anyplace selected by such justice; as the parties and their solicitor reside in Washington county, where the premises to be conveyed are situated, and within one hundred miles of the residence of the justice, the order must be granted, and be entered in the office of the clerk of that county. The caption of this order should be of the day and place when and where it was granted. The form of a caption given in rule' 8, of the Equity Eules, page 5, relates only to cases heard at a general or special term, and is directory to the clerk. It is not applicable to an order granted out of term, in pursuance of the 16th section supra, but the form of the caption of those orders not being provided for in the rules, nor in the statute, should be in pursuance of the 148th rule, entitled according to the customary practice, as it heretofore existed in the Court of Chancery. In conformity to that practice, the caption must state truly the time and place, when and where the order was made, and by what justice. (Rule 10, of Chancellor Walworth ; Whitney v. Belden, 4 Paige’s Rep. 140.)