German-American Bank v. Dorthy
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, John F. Dorthy, from an order of the ¡Supreme Court, made at the Erie Special Term and entered in the ■office of the clerk of the county of Erie on the 12th day of August, 1S9S, imposing certain terms as a condition of granting said defendant’s motion for a resale.
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Appeal by the defendant, John F. Dorthy, from an order of the ¡Supreme Court, made at the Erie Special Term and entered in the ■office of the clerk of the county of Erie on the 12th day of August, 1S9S, imposing certain terms as a condition of granting said defendant’s motion for a resale. On the 25th day of July, 1898, the appellant gave notice of motion to the plaintiff and to the referee who made the sale under .a mortgage foreclosure judgment, which notice was not addressed to any of the other parties to the action, in which notice it was stated that the appellant would ask “ for an order…
1Opinion of the Court
Per Curiam :
The notice of motion does not state specifically any grounds of irregularity according to rule 37 of the General Rules of Practice, which prescribes as follows: “ When the motion is for irregularity, the notice or order shall specify the irregularity complained of.” (Wheeler v. Brady, 2 Hun, 347.) It is not sufficient to state the supposed irregularity in the moving affidavits only. (Montrait v. Hutchins, 49 How. Pr. 105; Lewis v. Graham, 16 Abb. Pr. 126.)(2) By the terms of the order a resale was ordered in the event that the appellant complied with certain. conditions mentioned…
2Cases cited3 opinions
- Kellogg v. HowellNew York Supreme Court · 1872
- Lewis v. GrahamNew York Supreme Court · 1863
- Montrait v. HutchinsNew York Supreme Court · 1875
3Cited by3 opinions
- In re HowlandNew York County Court, Ontario County · 1908
- R. A. Schoenberg & Co. v. LoftusAppellate Terms of the Supreme Court of New York · 1904
- Van Wickle v. Weaver Coal & Coke Co.Appellate Division of the Supreme Court of the State of New York · 1903