Whitney v. Belden & Belden

4 Paige Ch. 140, 1833 N.Y. LEXIS 231, 1833 N.Y. Misc. LEXIS 71

• Court: New York Court of Chancery
• Decided: July 16, 1833
• Status: Published

Opinion

The Chancellor.

Although the decision of the vice chancellor, upon the exceptions, was made on the 3d of December, neither party could act upon or have any benefit from that decision, until the order was drawn up and perfected. In England, if the order is of course, without any special provisions, as in this case, the register draws it up in the usual form, and after it is entered in the minutes, he signs and passes it, which completes the entry of the order; after which it may be acted on by either party. Here, the solicitor for the party obtaining the order, or in whose favor a decision is made, draws up the order, and delivers it to the register to be passed and entered, or procures it to be drawn up and passed by the register; after which the order is considered perfected, so that either party may be allowed to act upon it, or to take copies thereof. And if the party entitled to draw up the order neglects to do so, for twenty-four hours after the decision of the court is pronounced, any other party interested in having the order entered, may apply to the register or assistant register where the decision was made, to draw up and enter the order, in conformity with the decision of the court, at the expense of the party so requesting the register to draw and enter the same. If the order is special in its provisions, the party entitled to draw up the order should submit a copy thereof to the adverse party, to enable him to propose amendments thereto, if he shall think proper. The draft, and the amendments proposed, if any, are then to be delivered to the register, that the order may be settled by Mm and entered. And where the register cannot understand the decision of the court so as to be able to settle the order in conformity therewith, he is then, and m that case oMy, to apply to the court to settle the order. Where it is of any importance to either party that the true time of entering the order should appear, the date or caption of the order should be made to correspond with the time of its actual entry or allowance by the register. I infer from the . ,. , , , ° . , ' , papers m this cause that the order was either drawn up by* the solicitor for the complainants as of the time when the decision was made, or at least that he sanctioned the entry of the order as of that date by serving a copy thereof on the solicitor of the defendants; upon which copy they founded their application to take the amendments off the files of the court, as not having been made within the ten days, as required by the 45th rule. After the service of such an order, I think the complainants werenot authorized to repudiate it, by alleging it was not in fact drawn up and entered at the time when, from the caption, it purported to have been made. And they should have filed and served their amendments within ten days from the date of the order, as drawn up and served. The order of the vice chancellor directing the amendments to be taken off the files, must therefore be affirmed, with costs,