New-York Fire Insurance v. Lawrence

6 Paige Ch. 511

Opinion

The Chancellor.

The common order entered by the complainant’s solicitor to answer the two first exceptions was irregular. The report having been excepted to by the complainant’s solicitor it did not become absolute under the 56th rule, until those exceptions were disposed of by the order of the court. The complainant’s solicitor should therefore have drawn up the order under the decision of the vice chancellor overruling the exceptions and confirming the master’s report. And he should have made it a part of the same order that the defendant put in a further answer to the two first exceptions within the time allowed, as a separate common order to answer was not necessary? though it would not have been irregular if the special order to confirm the report had been previously entered.- Until the exceptions to the report were disposed of by the order of the court, the complainant had no more right to call for a further answer as to the two first exceptions than he had before the decision of the vice chancellor was pronounced. (2 Moll. Rep. 70. 4 Paige, 140,)

As the irregularity complained of had deprived the defendants of their defence, it was proper to open the order taking the bill as confessed, although there had been some delay in making the application.

The order appealed from must be affirmed with costs»