Rogers v. Toole

4 Sarat. Ch. Sent. 51, 1844 N.Y. LEXIS 362

Opinion

In this case the chancellor decided that, as a general rule, where a notice of . . . a motion is given, or an order to shew cause is served upon , , . k the adverse party, and he neglects to appear to oppose the motion, or to show cause against the relief asked for in the order, the party giving the notice or obtaining the order to show cause is only entitled to such relief, by default of the adverse party, as was specified in the notice, or stated in such order. And tl^at he cannot, under the alternative clause for other re-: lief not specified, obtain further and different relief which he has nqt apprised the adverse party that he intended to ask for.

íjfature of relief >yhere motions are opposed'. ‘

But that where the application is opposed, if the applicant is not entitled to the particular relief asked for, the court, under the alternative clause, may give him such further p.r other relief as the facts presented may entitle hipi to, under, all the ciicumstances of the case.

Decision of the vice chancellor refusing to set aside order, of January, 1844, as irregular reversed; and prayer of petition granted, with $10 posts, together with taxable costs of appeal.