Smith v. Seattle, L. S. & E. Ry. Co.

19 N.Y.S. 742, 47 N.Y. St. Rep. 283, 65 Hun 619

Opinion

Per Curiam.

We think the papers served on this motion were fatally defective. The allegations of the petition were upon information and belief as to some of the matters material to the application, and on writings not annexed to the petition as served. If the rule requiring all papers to be served which are to be used upon a motion means anything, it should have been complied with in this case, and, the objection having been taken on the hearing, it should have prevailed. It is not a sufficient answer to say that the party moved against should have asked that the papers be served on it, but, rather, that the moving party should have asked for leave to serve them on such terms as to the court might seem fit. The objecting party was in no wise in default. Both parties placed themselves on their strict legal rights, and under such circumstances no reference could be made without such service, and without such reference the petition of the plaintiffs was not sufficiently supported.

The order is reversed, with $10 costs and disbursements of the appeal.