45 Misc. 591 | N.Y. App. Term. | 1904
Defendants obtained an order cancelling a judgment, on the ground of a discharge in bankruptcy, and the plaintiffs instituted a motion by order to show cause why that order “ should not be re-argued and resettled, so as to recite the appearance of Bernard H. Arnold Esq. as counsel for the plaintiffs and the reading and filing of the affidavits, etc.,” referring to a number of affidavits deemed to have been before the court, “ and why such other and further relief as; the court may deem proper in the premises should not be granted herein.” The papers upon which the order to show cause was based eoncededly contained no suggestion of a reason for the notice of less than five days, thereby authorized, and the objection was taken by affidavit, on the part of the defendants. Notwithstanding this objection, the court proceeded to hear the motion and made an order, not for a reargument or resettlement, but for the vacating of the order, obtained by the defendants in toto.
This relief was not suggested by the order to show cause; it was different relief, not of the nature of the relief asked in a degree such as could bring it within the meaning of “ other and further relief,” and the defendants were not apprised by the order to show cause that the application would be directed to this end. If, however, the court had discretion to reach such a result, upon a motion before it, there was no authority for the order upon this motion, since the order to show cause was not founded upon proof of necessity for shorter notice than the period prescribed for notice of a motion. Where the motion papers are thus defective, it is error for the court to proceed with the hearing, over objection, and this error is of such a character as to require a reversal. Proctor v. Soulier, 82 Hun, 353.
Order reversed, with ten dollars costs, and disbursements! and order thereby vacated reinstated.
Freedman, P. J., and Gildersleeve, J., concur.
Order reversed, with ten dollars costs, and disbursements and order thereby vacated reinstated.