8 How. Pr. 185 | N.Y. Sup. Ct. | 1852
There'has been some misunderstanding between the parties in this matter, as appears by the affidavits presented on both sides. It would seem, however, that the appeal had been brought and that every attempt to have the sureties justify had been made in good faith. The excuse is sufficient that the sureties did not appear at the hour fixed upon on the last day appointed for justification (2d Sept.), one of them being sick and unable to reach Amsterdam until the evening. On their arrival there, the attorney for respondent, who was in the vicinity, was informed of the fact, and requested to attend, which he declined, alleging that the hour was past; that he had other business, and that he would not accommodate Mr. Cook.
I think it would have' been better for the attorney for the respondent to have attended the justification at that time. Both parties have been quite technical in their practice, and do not seem to have been disposed to be very accommodating to each other.
As the respondent did not attend, however, before Judge Belding, when the sureties justified, and as he alleges in his affidavit that they are irresponsible, I shall grant the motion to dismiss the appeal, unless the attorney for the appellants shall within twenty days after service of notice of this order serve a new notice of justification, and unless the sureties justify anew, in pursuance of such notice, or unless new sureties be substituted, who shall so justify; in which case the appeal is to stand, and neither party to have costs of this motion.
Note.—It appearing after this opinion was written, that the affidavit of the appellants’ attorney did not contain the jurat or signature of the officer before whom it was sworn, leave was granted to swear to the affidavit anew, and the appellants required to pay $10 costs of the motion.
