Rosevelt v. Fulton
New York Supreme Court
The last February term judgment was given for the plaintiff upon a hill of exceptions taken by the defendant. -phe plaintiff was proceeding to sell the goods of the testator, on the 6th of May, when an order of the recorder of New York, dated May 5th, was served on the sheriff, reciting that the defendant had lately died, that administration had not been granted though application had been made therefor, and directing that proceedings he staved upon the ' or c . j.…
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The last February term judgment was given for the plaintiff upon a hill of exceptions taken by the defendant. -phe plaintiff was proceeding to sell the goods of the testator, on the 6th of May, when an order of the recorder of New York, dated May 5th, was served on the sheriff, reciting that the defendant had lately died, that administration had not been granted though application had been made therefor, and directing that proceedings he staved upon the ' or c . j. execution, till the last non enumerated day of this term ; and until the further order of this court. The order was not served on…
1Opinion of the Court
Curia.
The motion to vacate the order must be granted. As to the plaintiff it ivas inoperative, both for want of being served, and because it was not followed with a notice of motion. It is well settled, that in the case of an -order to stay proceedings with the view to a non-enumerated motion, this must be accompanied with a notice of the motion; otherwise it does not stay the proceedings. (3 John. 451.) If this were not so, an order like the present would, in all cases, throw the burthen of a motion upon the party against whom it is taken. There is much more reason for holding the party to…
2Cases cited2 opinions
- Bailey v. CaldwellNew York Supreme Court · 1808
- In re between the Mayor of New York & President & directors of the Manhattan Co.New York Supreme Court · 1804