Vermont Academy of Medicine v. Landon

2 Wend. 620

• Court: New York Supreme Court
• Decided: August 15, 1829
• Status: Published

Opinion

By the Court, Savage, Cl). J.

An order for a bill of particulars is not in itself a stay of proceedings. It has not that effect unless it directs a stay bf proceedings. The precedents, both in the king’s bench and this court, uniformly contain such direction. Not being contained in cthe first order served in this case, the plaintiff was at liberty to proceed and enter the defendant’s default for not pleading. The rule of last term is vacated, and the defendant’s default is set aside on payment of the costs of the same, and of this motion.

Anon.

Allowance to «commissioners in partition $3 Per diem‘

The court being applied to to fix the per diem allowance « . . . •, .« #• of commissioners m a partition suit, said that the practice of the court was to allow three dollars per day to each commissioner.

Motions for bringing “on ™oti™s n°t¡cweek of term t0 be made 011 first Saturday. In all other cases, on the day succeeding that for which the notice is given.

On Saturday of the first week of term, after the submiting of non-enumerated business was closed, a motion was made for costs for attending prepared to oppose a motion, noticed for the first day of term, which had not been made. Cur. rid milt aa-

On Monday morning of the second week of term, the court grante(j th.e motion, and heard and granted motions in similar cases ; and said that for the future such motions would be heard on Saturday of the first week, after the business was gone through with of submitting motions.

*

The following decisions also were made by the court, under the rules of May term last, requiring all notices of motions to be for the first day of term unless, &c. and all motions to be submitted during the first week of term.

Costs were asked on Monday of the second week by a defendant for attending prepared to oppose a motion for reference. The counsel for the plaintiff on the preceding day (Sunday) had received the papers for the motion, and now offered to submit them. The court refused to receive them, and granted the motion for costs, saying that motions noticed for the first day of the term must be submitted during the first week, and will not be received unless cause be shewn for the omission.

In another case, in which the notice was for Saturday of the first week and the motion made on that day, the court, on the succeeding Monday, refused to receive papers in opposition, although they had not come to the hands of counsel until that morning.

The court also refused to receive papers in the second week of term on a motion for a mandamus, no cause being shewn why the motion was not made in the first week.

So also a trial by record was refused to be heard in the second week, it being classed among the non-enumerated business, and therefore should have been moved in the first week.

On Monday of the third week of term, costs were moved for, for attending prepared to oppose a motion noticed for a day in the second week of term. On the next day the court granted the motion, and said that for the future they would hear motions for costs, in cases noticed for a day subsequent to the first week of term, on the day succeeding that for which the notice was given.