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Olney v. Bacon

3 Cai. 132 Court N.Y. Sup. Ct. English

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p. 132
Stephen Olney against Ebenezer Bacon.
ALBANY,
August, 1805.

Headnote

AN order had been obtained, on behalf of the plaintiff, to stay proceedings till the fourth day of last term, for the purpose of affording an opportunity to move for a rule, directing the justice, in the court below, to amend his return, by inserting a written document adduced in testimony before him. By some accident, the attorney entrusted with the papers, did not arrive in New-York till after the fourth day, and on the sixth, the defendant entered a default against the plaintiff for not assigning errors according to notice, after which, the plaintiff, on the last day of the term, obtained his rule to amend, no oneappearing to oppose.
Woodworth,
on these facts detailed by affidavit, moved to set aside the default and subsequent proceedings.
Foote contra,
relied on a stipulation entered into between the attornies in the cause, by which it was agreed, that the written evidence referred to in the return was the order or draft therein mentioned. This he contended was adequate to the amendment to be moved for, and superseded the necessity of application j therefore, errors not being assigned at the time the order expired, the defendant was regular in his default.
Woodworth in reply.
The stipulation reached only to the identity of the paper, the mere production of which was not evidence, and the object of the motion was to procure a return of it, to shew it was no testimony, without being corroborated by witnesses. Besides, when a party does not appear to oppose, he waives all objections. Ekhart v . Dearman, 2 N. Y. T. R. 379.

The stipulation- was- defective, for the object of the plaintiff could not have been obtained by it; nor does it state to have been made with a view of superseding the necessity of an application- to- the court.- But the order to stay proceedings, having in fact expired before the default for not assigning errors was entered, the defendant

p. 133
Was regular; though, as there has been some misapprehension, and a delay from accident, it must be set aside on pay-mentor costs and assigning errors in twenty days.