Andrews v. Cleveland

3 Wend. 437 | N.Y. Sup. Ct. | 1830

By the Court,

Sutherland, J.

It is unnecessary to say how the Order to shew cause on a Sunday would have been regarded, as on the twenty first day of December, when the inquest was taken, its force as an order to stay proceedings was spent, and it was not continued by a peremptory order. The proceedings of the plaintiff were therefore entirely regular, and the motion to set aside the inquest wouj¿ he denied but for the affidavit of merits; and even on this ground the court have had their doubts. An order ^or a bill °f particulars may be made at any time before the trial, on the application of either party, (2 Archbold, 221;) but when applied for by a defendant, after issue joined, it is a suspicious circumstance, and the officer granting an order should be well satisfied that the object of the party is not delay, and he should require a good excuse for the late application. There is reason to suspect that the order in this case was obtained with a view to delay, inasmuch as it was not followed up with a peremptory order. The court, however, are inclined to let in the defendant to defend the suit, permitting the plaintiff to perfect his judgment and hold the same as security, and ordering the defendant to pay the costs of this motion.