Fassett v. Dorr
New York Supreme Court
The declaration was served in this case, on the eighth day of August, 1833. On the sixteenth, the defendant obtained an order for a bill of particulars, or that the plaintiff show cause on the twenty-fourth- of August, and that in the mean time all proceedings stay. On the day appointed, the plaintiff’s attorney appeared before the judge to show cause ; no one appeared for the defendant, and no peremptory order for a bill of particulars was granted.
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The declaration was served in this case, on the eighth day of August, 1833. On the sixteenth, the defendant obtained an order for a bill of particulars, or that the plaintiff show cause on the twenty-fourth- of August, and that in the mean time all proceedings stay. On the day appointed, the plaintiff’s attorney appeared before the judge to show cause ; no one appeared for the defendant, and no peremptory order for a bill of particulars was granted. The plaintiff did not deliver a bill of particulars, and not having received a plea, the defendant’s default for not pleading was entered, and…
1Opinion of the Court
By the Court,
Savage, Ch. J.
So far as the defendant relies on irregularity, he fails. The order of the sixteenth of August, to stay proceedings, was spent the twenty fourth, as it was not continued by a peremptory order. Andrews v. Cleveland, 3 Wendell, 437. It is true that the peremptory order need not be served for any purpose but to non-pros the plaintiff, but still it must be obtained ; the defendant must show that he is in earnest in his application for the bill of particulars; *and that it is not made merely for delay. Here the plaintiff attended before the judge prepared to show cause,…
2Cases cited2 opinions
- Andrews v. ClevelandNew York Supreme Court · 1830
- Rowan v. MerrittNew York Supreme Court · 1832
3Cited by4 opinions
- Murdock v. . WatermanNew York Court of Appeals · 1895
- Langlie v. LogeNorth Dakota Supreme Court · 1930
- Grovenor v. SignorNorth Dakota Supreme Court · 1901
- Nickell v. TracyAppellate Division of the Supreme Court of the State of New York · 1905