Main v. Pope

16 How. Pr. 271

• Court: New York Supreme Court
• Decided: July 15, 1858
• Status: Published

Opinion

Ingraham, Justice.

The judgment in this case was in defendant’s favor, and he applied for an allowance, which was granted. The motion was made on a notice of two days to a judge at chambers.

The plaintiff moves to set aside the allowance for irregularity.

1. Because the referee could not grant an allowance. This is so, and it was not in this case granted by the referee. His certificate was furnished to the court to show what had been done in the case, and was proper for that purpose.

2. That the notice should have been a notice of eight days. If such a notice was necessary, unless the time was shortened by the judge, the plaintiff should have made the objection on the day of making the motion. If he suffers a motion to be made on a short notice without objection, he cannot afterwards take advantage of it in another motion. He had two days’ notice of motion and should have then opposed it.

3. The Code provides that the allowance shall be made by the court, and so does the amendment of 1858. That is the general rule in all motions, but the Code also provides that in the first district all motions except for new trials, may be made at chambers. This includes motions for an allowance. Besides this, an order made at chambers is always made during the term of the court, as a special term is always held during the hours of attending at chambers.

The allowance is small and appears to be proper, and there is nothing in the reasons stated by the plaintiff’s counsel to call for an order to vacate the order granting them.

Motion denied.