McCaffrey v. Butler — 87 A.D. 535

Majority

p. 535

Thomas G. McCaffrey, Respondent, v. Johh R. Butler, Appellant.

Headnote

Motion—it cannot be withdrawn and a new motion be made without the order of the court.

After a party has been put to the trouble and expense of opposing a motion, the moving party cannot withdraw such motion without the order of the court or the consent of the opposing party, nor can the moving party make a new motion on the same facts without the leave of the court.

Appeal by the defendant, John R. Butler, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day •of October, 1903, granting the plaintiff’s application to place the ■cause upon the calendar for the trial of preferred causes.

Frederick B. House, for the appellant.

Charles W. Lefler, for the respondent.

Without considering the merits of the application, the order must he reversed for the reason that at the time of making the motion a ••similar application was pending undetermined in the same court. In opposition to the motion defendant’s counsel presented an affidavit showing that issue had been joined and the cause had been noticed for trial for the May Term, 1903; that a motion was made by the plaintiff, returnable in Part 2 of the Trial Term, presided -over by Mr. Justice Leventkitt, June 26,1903, to advance the trial •of this cause upon the same grounds upon which this motion was made; that the papers for and in opposition to the motion were -duly submitted to the court, and that no decision has been rendered thereon. These facts are not controverted. The plaintiff attempted to withdraw the former motion by a notice to that effect in the notice of motion which résulted in the order now under review. This notice, however, was ineffectual for that purpose* The motion •could not be withdrawn without the order of the court or the con-sent of the defendant after the defendant had been put to the trouble and expense of opposing it. N or could a new motion be made on the same facts without leave of the court. If this practice "were to be sanctioned, then motion after motion could be made

p. 536

without limit, and one party might put his adversary to untold needless trouble and expense and burden the courts with the re-examination of papers and the determination of questions that had been examined and determined over and over again by the same court presided over by the same or another justice.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denie'd, with ten dollars costs.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred..

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.