Moody v. Payne

3 Johns. Ch. 294, 1818 N.Y. LEXIS 208, 1818 N.Y. Misc. LEXIS 26

Opinion

The Chancellor said,

that after the rule to show ca ise why publication should not pass, had expired, the reg ilar practice would have been to have entered a rule with the register, that publication pass, and so the practice was understood in Brown v. Ricketts.

* But this case formed an exception to that practice. After the rule was given to pass publication, and before it had expired, the same was enlarged by arder ; and when the time limited by the order expired, publication passed, in consequence of that order, and without the necessity of a further rule. Such is the practice laid down in the books, and which must prevail, in the absence of any special provision, or any settled course of practice to the contrary. (Wyatts P. R. 355. 1 Harr. Ch. Prac. 448.)

The plaintiff was regular in the course he pursued, and the motion fails upon the merits. The facts suggested as an excuse for the defendants’ delay are contradicted, and they are left without any excuse. It also appeared, that the substance of the testimony taken on a material pointy upon which further testimony is sought, had been disclosed to the defendants, at their request. The doctrine in Hamersly v. Lambert, (2 Johns. Ch. Rep. 432.) as to open-j mg and enlarging publication, applies to the case.

Motion denied.

Ante p. 68.