Ex parte Benson
New York Supreme Court
J. A. Spencer moved for a mandamus to the judges of Oneida 0. P., commanding them to set aside a rule to quash an appeal, taken by default against the relator, on motion of Brace and others", appellees. cThe motion was noticed for December term of the 0. P., 1826; and the hearing postponed to the next term, March, 1827. At this time, the relator’s attorney was in Albany attending the supreme court; and the postponement entirely escaped his recollection.
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J. A. Spencer moved for a mandamus to the judges of Oneida 0. P., commanding them to set aside a rule to quash an appeal, taken by default against the relator, on motion of Brace and others", appellees. cThe motion was noticed for December term of the 0. P., 1826; and the hearing postponed to the next term, March, 1827. At this time, the relator’s attorney was in Albany attending the supreme court; and the postponement entirely escaped his recollection. On these facts, he moved the 0. P. to vacate the rule, and hear the motion on its merits; but the motion was overruled.
1Opinion of the Court
Curia.
Whether the 0. P. would open the rule or not, upon the facts disclosed, rested entirely in their discretion; with which we have nothing to do. The question is not, whether we would have listened to the application, in a like case, upon our rules of practice. The court below have *364their own rules; and so far as they rest in discretion, *and vi0ia^e no ruje 0f iaWj we uniformij refuse to interfere with ^enii (Vid. Ex parte Bacon, 6 Cowen, 392.) Granting this motion, would be a precedent for reviewing the whole non-enumerated business of every court of O. P. in the state. [1]
Motion denied.
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2Cited by3 opinions
- People ex rel. Gardenier v. Board of SupervisorsNew York Supreme Court · 1888
- Judges of Oneida Common Pleas v. People ex rel. SavageCourt for the Trial of Impeachments and Correction of Errors · 1799
- People ex rel. Oelricks v. Superior CourtCourt for the Trial of Impeachments and Correction of Errors · 1799