Garrett v. Wood — 24 A.D. 620

Majority

p. 620

Lena Garrett, Appellant, v. Bradford R. Wood, Respondent.

Headnote

Oral application to put a case over the term —waiver of affidavits.

An order of the court putting a case over the Trial Term may be made upon the oral statements of the counsel on either side if no objection be made thereto. On an appeal from an order so made an objection cannot be taken for the first time, that the order was improper because not based on affidavits.

Appeal by the plaintiff, Lena Garrett, from an order of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 13th day of September, 1897, putting the case over the term.

Barnwell Rhett Heyward, for the appellant.

Countryman, Du Bois & Bevans, for the respondent.

The only papers in the record before us are the order appealed from and the notice of appeal. The order states that the action coming on for trial in its regular order on the calendar, and the plaintiff having announced herself ready for trial, the defendant moved that the case be put over the term, and _ that after hearing the counsel for the respective parties the action was put over the term without costs. The order does not state that any papers were used. Presumptively none were used, but instead thereof the oral statements of counsel on either side. The point of the appellant seems to be that the order was improper because not based on affidavits. It does not appear that any objection was made on this ground. Such motions are often heard on .oral statements, and if counsel do not object at the time no error on that ground can be claimed. What the statements before the court were does not appear; and we, therefore, cannot say that the case was improperly put over. It is the business of the appellant to show error. That is not done here and the order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

Note.—The rest of the cases of this term will be found in the next volume, 25 App. Div.— [Rep.