Merchants & Mechanics' Bank v. Griffith
New York Court of Chancery
This was an application to vacate an order appointing a receiver in this cause upon a creditor’s bill. The defendant’s counsel was attending in court to oppose the motion for a receiver the whole of the day for which the usual notice of the motion to appoint the receiver was given. But the complainant’s counsel, who was not aware of the intended opposition to the motion, obtained the usual order of reference, by default, unobserved by the defendant’s counsel.
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This was an application to vacate an order appointing a receiver in this cause upon a creditor’s bill. The defendant’s counsel was attending in court to oppose the motion for a receiver the whole of the day for which the usual notice of the motion to appoint the receiver was given. But the complainant’s counsel, who was not aware of the intended opposition to the motion, obtained the usual order of reference, by default, unobserved by the defendant’s counsel. The judgment against the defendant was recovered in the supreme court, and the execution thereon was issued to the sheriff of the…
1Opinion of the Court
The Chancellor.
The excuse for not having opposed the motion is unquestionably sufficient • as it was probably owing to inadvertence on the part of the court, in allowing such motions to be made as a matter of course before taking up litigated motions, that the defendant’s counsel was deprived of the' opportunity of opposing the motion when it was made. The defendant should therefore be placed in the same situation as if the complainants’ application for the appointment of a receiver was now to be heard and decided upon the papers before me.
If the affidavits on the part of the defendant are…
2Cited by4 opinions
- Durand & Co. v. Gray, Kingman & CollinsIllinois Supreme Court · 1889
- Sayre v. ThompsonNebraska Supreme Court · 1885
- Wales v. LawrenceNew Jersey Court of Chancery · 1882
- Wheeler v. HeermansNew York Court of Chancery · 1846