Majority
p. 583John Isley, Appellant, v. Maurice Gilbert and Brooklyn and Long Island Realty Company, Respondents. Second Department, December 30, 1908.
Headnote
Practice—motion and order —motion after denial of similar motion made by codefendant.The fact that the motion of one defendant to open his default has been denied does not prevent another justice from granting a similar motion made by a codefendant.
Criticism of court reproved.
Appeal by the plaintiff, John Isley, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of May, 1908.
The motion was made by the defendant the Brooklyn and Long Island Realty Company.
Charles Foley, for the appellant.
Harry Cook, for the respondent Gilbert.
Alonzo G. McLaughlin [Leo C. Stern with him on the brief], for the respondent Brooklyn and Long Island Realty Company.
This is an appeal by the plaintiff from an order opening a default to answer, and vacating the judgment, which is to foreclose a
p. 584
mechanic’s lien. The attorney for the plaintiff seeks to cast odium on the learned Judge who made the order by saying that he granted the motion notwithstanding that another Judge at Special Term had previously denied it, and capital letters are resorted to so that this may be made plain to us. The answer to this statement is that when the record is examined it is found not to be true. The defendant Gilbert’s motion was previously- denied by another Judge, but the motion now before us was made by the other defendant. The subjecting of Judges to false criticism of this kind deserves severe reproof. It is always regrettable to find statements in a brief which are not in accordance with the record and are calculated to mislead. Moreover, the order and papers on the previous motion were not produced at all on the present motion, nor was the learned Justice informed of them by affidavit. In order to give color to his unfounded criticism, however, the plaintiff’s attorney has included them in the appeal record.
The order should be affirmed.
Woodward, Hooker, Rich and Miller, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.