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wise direct ; 85 that is to say, that a default on a mere motion does not give the party an absolute right to his order, except it be in a case where the statute gives the right.
The court or judge will not grant an order on default if the notice or service, or proof of service, is insufficient; but if a defect in this respect escapes the notice of the court or judge the order granted on default will not be void, and must be obeyed, unless the defect is jurisdictional.
And, although it is almost a matter of course to open defaults op motions, on any excuse being shown,se yet the disregard of a notice in reliance on the court discerning a defect in the notice, or service, is not always excused.
126. Default of moving party.]— On a non-enumerated motion, upon the failure of the moving party to appear, the court ghall deny the motion on the filing of the copy of the notice of motion or order to show cause. A
party attending pursuant to notice to oppose a non-enumerated inotion at Appellate Division may, if it be not made on the day for which it is noticed, unless the court otherwise order, at the close of that order of business, take an order against the party giving the notice, denying the motion with costs.
127. Adjournment for further preparation.]-A party is entitled to reasonable time for preparation to oppose a motion when excuse for non-readiness and due diligence are shown.89.
But an application for postponement does not entitle the party
85 N, Y. Gen. Rule No. 37. 86 Thompson v. Erie Ry. Co., 9 Abb. Pr. (N. S.) 233, 239. Laches in moving to be relieved from the default is a sufficient ground for denying the application. Re Peekamoose Fishing Club, 8 App. Div. 617. 87 N. Y. Gen. Rule No. 37. 88 N. Y. Gen. Rule No. 44.
89 Ohly v. Ohly, 11 Wkly. Dig. 129; abstr. 8. C., 11 Reporter, 62 (absence of defendant, whose affidavit was needed by his counsel in order to oppose the motion, being shown, order refusing to open default was reversed).
Where counsel asked an adjournment merely for the purpose of consult. ing with his client as to the expediency of striking out a part of the affidavit of his client which he produced, the court refused the postponement, saying that the affidavit must be taken to be true, and that the reasons for usually granting an adjournment in order to adduce further proof do not apply to an application for time to consider on withdrawing proof. People v. Freer, I Cai. 485.
to it as matter of right, unless the grounds of the application are substantiated by affidavit.Ro
128. Reservation of objections upon adjournment.] - If it be desired to reserve the right to object to the jurisdiction of the person, or to the notice, or to the service, or to the power of the court or judge to hear the particular motion, the terms of any stipulation, or order, adjourning the motion should be expressed with sufficient distinctness to avoid waiving any of these objections. 91
129. Preliminary objections. ]- Technical objections to the making or bringing on the motion must be stated in opposition, before the merits of the motion are opened ; 92 and technical objections to any particular paper must be stated in opposition to receiving it, before the paper is read in support of his case by the party relying on it. 93
Technical objections not disclosed on the face of the papers
90 Cagney v. Fisher, 34 Hun, 549.
The principle applicable on contests as to postponement on important motions is more fully evolved in the statement in Abb. Tr. Brief, Civil Jury Trials, 2d ed., pp. 1-50, as to applications to postpone trial.
91 Grafton v. Union Ferry Co., 13 N. Y. Supp. 878, 20 Civ. Pro, Rep. 238 (consenting to an adjournment waives insufficiency of notice, or want of any notice of motion). See paragraphs 101 and 129.
92 Cowenhoven v. Bull, 118 N. Y. 231; Wiley v. L. I. Ry. Co., 88 Hun, 177, 34 N. Y. Supp. 415.
Roosevelt v. Dean, 3 Cai, 105, Col. & C. Cas. 460 (objection to entitling of motion papers held waived).
Cronin v. O'Reilly, 7 N. Y. Supp. 337 (insufficiency of notice). Crane e. Stiger, 58 N. Y. 625 (objection that party appearing in opposition had not been served with notice of motion). Matter of Loftus, 41 N. Y. St. Rep. 357, 16 N. Y. Supp. 327 (nonpayment of motion costs).
It seems to have been held in Larkin v. Steele, 25 Hun, 254, that appear. ance, pursuant to an order to show cause, granted by a judge who had no authority to grant it, is equivalent to appearance on due notice, for the purpose of enabling the court to act on the motion; except that if the notice be objected to the objector cannot be charged with costs of the motion.
But this cannot be deemed authority for holding that one who is present and responds merely to object to defect of notice or order to show cause, subjects himself to an order, as if he had due notice, though without costs; for by not appearing he takes the risk of the judge granting, without noticing the defect, an order which will be binding on him for not appearing.
03 Plympton v. Bigelow, 11 Abb. N. C. 180; Mix v. Andes Ins. Co., 74 N. Y. 53, 30 Am. Rep. 260; Rogers v. Rogers, 54 App. Div. 195, 66 N. Y. Supp. 512 (objections that affidavit was not properly certified). Wooster v. Bateman, 4 Misc. 431, 24 N. Y. Supp. 112 (that no necessity for an order to show cause was shown). Kibbe v. Wetmore, 31 Hun, 424 (additional affidavits offered which had not been served with notice of motion).
must be stated in opposition as soon as the fact comes to the notice of the objector.
Objections to the power of the court or judge to entertain the inotion are within this rule, if founded on defect of notice or service; that is to say, if analogous to objection to a failure to acquire jurisdiction of the person.
The objections deemed waived by omission to state them as preliminary are only those which might if sustainable have prevented the hearing of the motion, or the reception of the paper to which the objection relates.
130. – reserving decision.]— The party raising a preliminary objection has not a right to insist on its being determined preliminary to a hearing of the merits; but the court has a discretion to reserve its decision and hear the motion on its merits.
If the court reserves its decision on a preliminary objection, and postpones hearing the merits meanwhile, its decision against the objection and requiring the party moved against to appear is binding if he (or his attorney, as the case may require) has actual notice, although a formal order on such decision be not entered and served.94
131. Moving party to be confined to papers he has served.] - The moving party should be confined to the papers he has seasonably served, and cannot produce others in support of his motion in the first instance, 95
In order to get in additional papers against objection he must either wait till his adversary has produced his opposing papers, and then offer them as supplemental affidavits, or he must ask
94 Baker v. Stephens, 10 Abb. Pr. (N. S.) 1. The more usual practice is to hear argument on the merits without ordering an adjournment, and if the preliminary objection be overruled, to proceed to a consideration of the merits. See, for example, Matter of Social Dem. Party, 45 Misc. 194, 91 N. Y. Supp. 941 (reversed on another point in 182 N. Y. 442).
95 In Chapuis v. Long, 77 App. Div. 272, 78 N. Y. Supp. 1046, the practice was condemned of receiving affidavits in support of a motion which have not been served, and which the other side has had no opportunity of answering
The court has no right to consider and determine a motion upon facts which appear in a record, or in papers not presented upon the hearing. Zeltner v. Henry Zeltner Brewing Co., 85 App. Div. 387, 83 N. Y. Supp. 366.
If additional affidavits are received and considered by the Special Term without objection, they will also be considered on appeal. Rubino v. Marianu, 65 App. Div. 314, 73 N. Y. Supp. 7.
an order to show cause founded on his additional papers, or give a new notice, or get an adjournment as equivalent to notice.*
132. Moring party to be confined to specified grounds.] – Where there are several grounds upon which a motion may be granted, the moving party should be confined upon the hearing to those which he has stated in his moving papers.
133. Opposing papers.]— Papers to oppose a motion must be entitled; $s and in general the same rules apply to their form as to the papers in support of a motion. 99
134. Counter-affidarits.]— The party mored against has a right to read counter affidavits in opposition upon the merits, in denial, or in avoidance, or in impeachment of the credibility of the affidavits of the moving party, and previous service of such counter-affidavits is not necessary.
The court have power to receive counter-affidavits also as to incidental facts not relevant to the merits of the motion, but relied on by a moving party as rendering his motion proper, such
96 The court may properly adjourn the hearing and give the moving party permission to serve and read additional papers setting forth facts discovered since the motion was made. Smith r'. Seattle, etc., Ry. Co., 19 N. Y. Supp 742; Bergen u. Boerum, 2 Cai. (N. Y.) 256. But not to supply omissions in his moving papers, when no excuse for such omissions is proffered. Northrup v. Village of Sidney, 97 App. Div. 271, 90 N. Y. Supp. 23.
If such additional affidavits are received, which tend to supply defects in the moving papers, the adversary must be given opportunity to reply thereto. Poillon v. Poillon, 75 App. Div. 536, 78 N. Y. Supp. 523.
97 Bowman v. Sheldon, 5 Sandf. 657. Duer, J., says: “ If irrelevancy were the only ground upon which a motion (as here] to strike out parts of a pleading could be sustained, the omission to state the ground in the notice I should hold to be immaterial; but where there are several grounds upon which a motion may be granted, those upon which the moving party means to rely must be distinctly stated, either in the notice or in the affidavits that accompany it, and to the grounds thus stated the party will be confined on the hearing. I consider this to be the established practice, and the rule is in itself so reasonable and just that I have no inclination to depart from it."
So, on a motion to vacate, noticed on the ground of irregularity merely, the mover is not entitled to appeal to the favor of the court on the merits. Asinari r. Volkening, 2 Abb. N. C. 454.
98 Atwater r. Williams, 2 How. Pr. 274.
99 See article on AFFIDAVITS, p. 11 of this volume, and paragraph 76 at p. 112.
i Campbell r. Grove, 2 Johns. Cas. 104; Hart v. Faulkener, 5 Johns. 362. A positive assertion in the moving affidavit must, in order to be considered controyerted, he met by an equally positive denial, or by the assertion of facts which tend to disprove the existence of the fact, Re Sullivan, 55 Hun, 285; Simmons c. Craig, 17 N. Y. Supp. 24. And see title AFFIDAVITS, p. 11.
as an excuse for delay in moving. But counter-affidavits to contradict the fact of merits stated in the affidavit of merits are not received.3
Counter-affidavits cannot against objection be produced after the party offering them has opened his case, or has suffered the moving party to commence his argument; but the court may relieve the party from a slip in this respect.
135. - impeaching affiant's credibility.]— The credibility of any affidavit may be impeached by opposing affidavits to facts which would be admissible on a trial for the purpose of impeaching the affiant as a witness. When such affidavits are received the party whose affiant is impeached should be allowed opportunity :0 produce rebutting affidavits."
136. Additional affidavits on behalf of moving party.]- If the adverse party has produced no counter-affidavits, or only such as go to negative matter in the moving affidavits, the moving party cannot, against objection, produce further affidavits which have not been served.?
If the adverse party has produced counter-affidavits setting up new matter in avoidance of matter in the moving papers, the moving party may submit, upon leave granted, new affidavits rebutting such new matters by denial or avoidance; but not new affidavits
2 Quin v. Riley, 3 Johns, 249. 3 Hanford r. McNair, 2 Wend. 286; Lathrop v. Hicks, 2 Dougl. 223, 227. 4 Francis v. Church, Clarke, 475; Callen v. Kearny, 2 Cow. 529.
Same rule as to person named as a newly discovered witness in affidavits to move for new trial. Pomroy v. Columbian Ins. Co., 2 Cai. 259; Williams 0. Baldwin, 18 Johns. 489; Fleming v. Hollenback, 7 Barb. 271, 276.
For somewhat conflicting cases on impeachment, see Ritter v. Stutts, 8 Ired. Eq. (N. C.) 240; People v. Robertson, 26 How. Pr. 90; Perez v. State, 10 Tex. App. 327.
5 Merritt v. Baker, 11 How. Pr. 456; Clark v. Frost, 3 Cai. 125 (dictum). Contra, Callen v. Kearny, 2 Cow. 529.
But a party cannot indirectly support the character of his impeached affiant by introducing further affidavits to prove the truth of his affiant's statements, as this would violate the rule that an affidavit not duly served cannot be received in support of the original motion. Clark v. Frost, 3 Cai. 125.
6 Failure to object to supplementary affidavits may be treated by the appellate court as a waiver of the right to object.
Kibbe r. Wetmore, 31 Hun, 424 (affirming an order which was sustainable only on such affidavits).
7 Chapuis v. Long, 77 App. Div. 272, 78 N. Y. Supp. 1046. See paragraph 130, supra, and notes,
8 See cases under next paragraph. But leave so to do should be asked and obtained, or the moving party