Rosevelt v. Giles

7 Hill & Den. 166

• Court: New York Supreme Court
• Decided: December 15, 1844
• Status: Published

Opinion

By the Court,

Bronson, J.

The statute under which this proceeding was had plainly distinguishes between such orders as may be entered in the common rule book, and such as tnust he obtained on special motion. The rule to appear and plead is “ a rule of coürse(2 R. S. 313, § 4;) but if the party does not appear and plead in proper time, “ the court shall direct his default to be entered.” (§6.) The legislature evidently intended that the court should hear of the matter before the party was forever barred of his claim, The plaintiff should have moved the court for the default, showing by affidavit or otherwise when and upon what proof the rule to appear and plead was entered.

(a) We do not think this a case where the neglect to move at the first opportunity should defeat the motion altogether. But we will not give costs.

Motion granted, without costs.

This motion may be made either at a general or special term. (See Rules of Sup. Ct. May, 1845, No. 58.)