Brown v. St. John

19 Wend. 617 | N.Y. Sup. Ct. | 1838

By the Court,

Cowen, J.

It is insisted, in the first place that Judge Edwards had no power to revoke the order made by the recorder. The order for time was in its own nature revocable, and, being open to abuse, we have given every reasonable countenance to its revocation, in a proper case. By the return of the circuit judge to town, the power of the recorder was gone. The statute of 1832, Sess. L. 189, § 6, sub. 3; 2- R. S. 128, 2d ed., declares that no supreme court commissioner in the city of New-York shall be authorized to make any order or do any act relative to suits pending in this court; but in the absence of the circuit judge from the city, or his sickness, such duties may be performed by the first judge of the common pleas or recorder of the city. This statute, without changing the revocable character of the Order, leaves no option as to the officer who shall revoke when the circuit judge is well and in the city.

It is supposed that the defendants had the same time to plead after the time-order was revoked and the order of revocation served, that he had when the time-order was made. That is not so. The practice stated is confined to the case of oyer, or some act in the nature of oyer, such as furnishing a bill of particulars. Knap v. Smith, 7 Wendell, 534, 5. Mulholand v. Van Tine, 8 Cowen, 132. Notice was given of the order of revocation, which contained a very reasonable condition, the object being to secure the plaintiff a trial at the next circuit. All excuse of surprize or captiousness is, therefore, out of the case.

I would relieve on the affidavit of merits, but it does not conform to the new rule prescribing the language of such affidavit. The affidavit should be simply that the party deposing “ has fully and fairly stated the case to his counsel.” Rule 61. I do not say that special circumstances may not exist, under which a compliance with the exact terms of the rule may be out of the reach of ordinary diligence. On this being shown, the general rule, like all others, must give way. But the excuse should be laid before us. Prima facie, the party is capable of fully and fairly stating his case ; the words of the rule must be followed, and we cannot accept even an equivalent phrase, without the departure being expressly excused.

The motion must be denied, with costs—not the costs of the copy narr. annexed to Mr. Swift’s opposing affidavit. The motion is also denied with leave to renew it, on a proper affidavit of merits.