Wright v. Mayor

New York Court of Common Pleas

Wright v. Mayor

14 Daly 349, 13 N.Y. St. Rep. 153

DecidedDecember 5, 1887

StatusPublished

This text of 14 Daly 349 (Wright v. Mayor) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wright v. Mayor, 14 Daly 349, 13 N.Y. St. Rep. 153 (N.Y. Super. Ct. 1887).

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Opinion

Per Curiam. — [Present, Larremore, Ch. J., Daly and Van Hoesen, JJ.] —

It was the duty of the party who excepted to the ruling of the court to bring that ruling before the General Term for review. “The exceptions must be heard upon a motion for a new trial, which must be decided by the General Term ” (Code Civ. Pro. § 1000). The plaintiff ought to have prepared the case, as he excepted to the ruling that dismissed the complaint. He has failed to prepare the case, and he must be deemed to have waived his right to prepare one (rule 33).

The respondent was regular in noticing the exceptions for hearing at the General Term (§TOOO). As it was the duty of the plaintiff to prepare the papers on appeal, so also was it his duty to serve a copy of the appeal papers on the defendant and respondent (rule 40), eight days before the time at which the matter was noticed for argument. On his failure to do so, his adversary was at liberty to move, on four days’ notice, that the cause be struck from the calendar, and that judgment be rendered in his favor (rule 40). The motion of respondent must be granted.

Cause stricken from calendar, and judgment for defendant.

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Per Curiam. — [Present, Larremore, Ch. J., Daly and Van Hoesen, JJ.] —

It was the duty of the party who excepted to the ruling of the court to bring that ruling before the General Term for review. “The exceptions must be heard upon a motion for a new trial, which must be decided by the General Term ” (Code Civ. Pro. § 1000). The plaintiff ought to have prepared the case, as he excepted to the ruling that dismissed the complaint. He has failed to prepare the case, and he must be deemed to have waived his right to prepare one (rule 33).

The respondent was regular in noticing the exceptions for hearing at the General Term (§TOOO). As it was the duty of the plaintiff to prepare the papers on appeal, so also was it his duty to serve a copy of the appeal papers on the defendant and respondent (rule 40), eight days before the time at which the matter was noticed for argument. On his failure to do so, his adversary was at liberty to move, on four days’ notice, that the cause be struck from the calendar, and that judgment be rendered in his favor (rule 40). The motion of respondent must be granted.

Cause stricken from calendar, and judgment for defendant.

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Bluebook (online)

14 Daly 349, 13 N.Y. St. Rep. 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-mayor-nyctcompl-1887.