Ripley v. Burgess

2 Hill & Den. 360

• Court: New York Supreme Court
• Decided: January 15, 1842
• Status: Published

Opinion

By the Court,

Cowen, J.

The affidavit and notice of motion refer to the copy plea and notice served by the defendant’s attorney; but no copy is verified except by the production of an alleged copy now in the hands of the moving counsel. This may be false;. and I am not aware of any decision which would authorize the receipt of it as evidence to us, without an affidavit showing it to be a true copy. But we arc every day in the habit of doing as much in respect to admissions of service, which we judicially notice as genuine under the same circumstances. In the case before us, the copy purports to be signed by an officer of the court, and is produced by an officer. It is on this ground, I take it, that we receive admissions of service. In each case there is room for imposition; but our decisions on summary applications are not final; and on being felt, impositions may be at once corrected on motion. In case of admissions, too, the attorney by whom they purport to be made, is not supposed even to retain a copy or draft; whereas he always does retain one or the other of all pleadings which he sends out.

It is very desirable, as far as possible, to dispense with the service of papers not necessary for the adverse party in respect to motions which arise on pleadings or otherwise. Enumerated motions present another large class of cases in which copies are received' upon the official responsibility of attorneys and counsel. (Vide Jackson, ex dem, Wood, v. Harrow, 11 John. R. 434, 436.)

I think the paper in question may be received. The consequence is, that the motion must be granted to strike out the'plea with costs, unless .the defendant’s counsel shall elect to retain this. If the latter, let the notice be stricken out with, costs.

Ordered accordingly.