Mathis v. Vail
New York Supreme Court
The defendant had noticed a motion at chambers for Monday, February 5th. On that day plaintiff appeared, to oppose the motion; but, finding there was no judge at chambers on that day, left, supposing another notice must be given before the motion could be made. On Tuesday, February 6th, the defendant appeared; but, on account of the press of business, was unable to make the motion. On Wednesday, February 7th, the defendant again appeared, and took his motion by default.
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The defendant had noticed a motion at chambers for Monday, February 5th. On that day plaintiff appeared, to oppose the motion; but, finding there was no judge at chambers on that day, left, supposing another notice must be given before the motion could be made. On Tuesday, February 6th, the defendant appeared; but, on account of the press of business, was unable to make the motion. On Wednesday, February 7th, the defendant again appeared, and took his motion by default. The plaintiff now moves to set aside the order so taken by default, for irregularity.
1Opinion of the Court
Clerke, Justice.
All special motions are to be heard before the court, and not before a judge out of court; with a few exceptions—such as the proceedings under § 247 of the Code. The judge sits at chambers, principally, to attend to the latter out of court business, consisting of ex parte orders, not requiring notice, the issuing of writs of habeas corpus,» and the hearing on the return to such writs, the examination of witnesses de bene esse, the examination of judgment debtors under supplementary proceedings, &c. These, when not heard, require to be separately and specifically set down for a…
2Cited by1 opinion
- Berthold v. WallachNew York Court of Common Pleas · 1895