Thousand Island Park Ass'n v. Gridley — 25 A.D. 499

Majority

p. 499

Thousand Island Park Association, Respondent, v. Helen M. Gridley, Appellant.

Headnote

Practice—failure to recite in the order and, to file an affidavit used on a motion — permission to recite and file it should not be conditional.

Where an important affidavit read upon a motion has neither been recited in the order made on such motion, nor filed, nor made part of the record, and a sufficient excuse is shown therefor, it is improper to impose as a condition of allowing it to be recited in the order and filed, that the party seeking such relief should admit service, or submit to service upon her, of a judgment entered in the action.

Appeal by the defendant, Helen M. Gridley, from so much of an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Jefferson on the 28th day of August, 1897, as denies- a motion made by the defendant to correct a prior order in the action except upon conditions.

The following are the conditions contained in said order:

“ Upon condition .'that the defendant admit due personal service upon her as of this date of a certified copy of the judgment of the Special Term, herein entered in Jefferson County Clerk’s office on July 1st, 1896, or that she at once come, within the jurisdiction of this court and give the plaintiff opportunity to serve said certified copy of said judgment upon her personally, otherwise this motion is hereby denied, with ten dollars costs.”

The action was instituted to secure the removal of a dock which the defendant had constructed in the St. Lawrence river. The plaintiff had judgment and the defendant appealed therefrom -to

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this court where the judgment was affirmed. The defendant. then appealed to the Court of Appeals, which appeal is still pending.

In June, 1897, the same Special Term made .an order refusing to punish the defendant as for a contempt in not complying with the judgment which required her to remove a portion of the dock, upon the ground that the defendant had not been personally served with a copy of the judgment; but the order .contained the statement that the defendant had not, by her appeal to the Court of Appeals and her undertaking given on such appeal, stayed the execution of the judgment. From this order the defendant appealed to this court, which appeal is still pending. Upon that motion an affidavit of Willis T. Gridley, which contained important facts, and which established,, as the defendant claims, that undertakings had been made and served which were sufficient to stay the execution of the judgment, was read, but by inadvertence it was not ipcited as a part of the motion papers in the order, and this affidavit is not a part of . the record on the first appeal.

The court granted leave, however, to renew this motion after ten days. In pursuance'of such leave the defendant made the motion which resulted in the order herein appealed from. The motion was granted on the condition that the defendant admit personal service upon her of a certified copy of the judgment of the Special Term, or that she come within the jurisdiction of the court and give plaintiff an opportunity to make personal service of a certified copy of the said judgment upon her, otherwise the motion was denied.

The plaintiff’s affidavits upon the motion contained matter from . which it was claimed that the defendant was avoiding the service of a copy of the judgment.

B. A. Benedict, for the.appellant.

Edwin Nottingham', for the respondent.

The purpose of the motion, which resulted in the order appealed from, was to correct the record upon an appeal from a former order,, so as to insert in such record an important affidavit that had been made and read upon the motion which resulted in the first .order. (Rule 3 of the General Rules of Practice requires that, when an order is entered, all the papers used or read on the motion on either

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side shall be specified in the order, and shall be filed with the clerk unless already on file or otherwise ordered by the court.)

It is not denied but that an important affidavit was made and read upon the motion on behalf of the defendant, and that it was not-recited in the order nor filed nor made a part of the record. The defendant was entitled to have this done, and the court at Special Term was in error in imposing a condition upon this manifest right of the defendant. The affidavit was inadvertently omitted from the record, and the papers upon this appeal disclose a sufficient excuse for such omission.-

The order appealed from should be reversed, with ten dollars costs, |nd the motion to correct the record granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements; motion granted, with ten dollars costs.