Kudysch v. Brachfeld

133 Misc. 20, 231 N.Y.S. 83, 1928 N.Y. Misc. LEXIS 1090

Opinion

Per Curiam.

Order unanimously reversed upon the law, with ten dollars costs to appellants, and motion to resettle the order of April 2, 1928, granted so as to include the papers referred to in the order to show cause, dated March 15, 1928. We find no photostatic copy of a bill of December 24, 1927, filed with the papers and that bill is not referred to in the order to show cause dated March 15, 1928, and cannot be included in the order as resettled. The order of April 2, 1928, recited affidavits submitted by the plaintiff in opposition to the former motion. Since the defendants’ order to show cause referred to other affidavits on that motion and was in part based on those affidavits, which papers were on file in the court and copies of which had been received by the plaintiff’s attorney, the order of April second should have recited those papers. (Deutermann v. Pollock, 36 App. Div. 522.) Even though the motion last made was but a renewal, without leave, of the prior motion which is not now decided, that was not sufficient justification for refusing to recite all the papers which were made the basis of the last motion.

Present — Cropsey, MacCrate and Lewis, JJ.