Roosevelt v. Gardinier

2 Cow. 463

• Court: New York Supreme Court
• Decided: February 15, 1824
• Status: Published

Opinion

Curia.

The case cited from. Bosanquet & Puller, is in point to show that, in the Common Pleas, the defendant has no right to. demand a particular, till after he has appeared to the action; but we find that the practice is different in the Court of King’s Bench. In, Derry v. Lloyd, (1 Chit. Rep. 724,) it was decided that the defendant may obtain an order for a particular before appearance. In a note to that case, Chitty cites Impey’s K. B. 8th ed. where the same doctrine is laid down and the difference between the prac- . tice of the Common Pleas and King’s Bench is noticed. The reason given in favor of the practice as it prevails in the latter Court, is that the defendant, on seeing the plaintiff’s particular, may not think it worth while to be at any further expense, and settle the suit. We think the practice of the King’s Bench the more reasonable. The same case Derry v. Lloyd, determines the effect of this order. We agree that it was irregular. It should have been to furnish a particular by a certain day, or show cause. But it cannot be treated as a nullity. Though improvidently made, or not in due form, it was effectual to stay the proceedings till revoked or altered by the Judge or set aside on motion. In Derry v. Lloyd, the Judge granted an order for a particular in an action for an assault, to which, as was agreed by the Court, it was wholly inapplicable. The attorney proceeded and took a default notwithstanding the order, and it was set aside; the Court holding the order operative till complied with, or vacated. The V. S. were no part of Cornelius Roosevelt’s name. The law knows of but one Christian name. The order, therefore, was properly entitled. (Franklin & others v. Tallmadge, 5 John. Rep. 84.)

Motion granted.