McGarry v. Hart
New York Supreme Court
The defendant’s default for not pleading having been regularly entered, he now moved to set it aside on terms; and the only question in the case was whether he had sufficiently sworn to merits. His affidavit was in conformity to the 61st rule of January term, 1837, and named one S. W. J. as his counsel. On the part of the plaintiff it was shown that S. W. J. was not a counsellor of this court, but only an attorney. cited and commented on Beall v. Bey, (7 Wend. 513.)
1Opinion of the Court
By the Court,
Beardsley, J.
The advice of an attorney is not the advice of counsel within the rule,(a) and the motion must be denied. But the attorney may have been misled by what was said in Beall v. Dey, (7 Wend. 513,) and the denial should therefore be without prejudice to the right to renew the motion.
Ordered accordingly.
The 61st rule of January term, 1837, corresponds in phraseology with the 63d rule of May term, 1845.
2Cases cited1 opinion
- Beall v. DeyNew York Supreme Court · 1832