Clark v. Fairchild
New York Supreme Court
Motion in behalf of the defendant, to set aside a judgmen entered on a report of referees ; and for leave to move to set aside the report on the merits. The report was delivered to the plaintiff" 28th October, 1839; and was in his favor for $1017,29. Affidavits to set it aside on the merits were drawn and served on the second day of November; and the cause placed on the calendar for argument at the next January term.
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Motion in behalf of the defendant, to set aside a judgmen entered on a report of referees ; and for leave to move to set aside the report on the merits. The report was delivered to the plaintiff" 28th October, 1839; and was in his favor for $1017,29. Affidavits to set it aside on the merits were drawn and served on the second day of November; and the cause placed on the calendar for argument at the next January term. Through misappretension of the practice by the defendant’s attorney, no order was obtained to stay proceedings, and the plaintiff’s attorney perfected judgment, and issued and…
1Opinion of the Court
By the Court,
Cowen, J.
It is not denied that the judgment is perfectly regular; and all the defendant’s counsel pretends to claim is, that he should be relieved on terms, so far that we may hear a motion to set aside the report upon the merits. The mistake of omitting to obtain an order to stay proceedings was of a point in practice very well settled I but still, on a misapprehension so plainly established, we have the power to relieve, and should do so, provided the whole case presented a fair ground for interposing.
Certainly the mistake alone does not furnish an adequate reason; nor does the…
2Cited by9 opinions
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- Thomas v. DickinsonNew York Court of Appeals · 1855
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