Jackson ex rel. Davis v. Brownson — 4 Cow. 51

Majority

p. 51

Jackson, ex dem. Davis and another, against Brownson.

Headnote

A the nei general sufficiei if it add a particular day for the motion which is several terms forward, this may bo as surplusage.

M. T. Reynolds, moved for judgment as in case of non-suit, upon a notice of motion which was thus : “ Take no

p. 52

tice, that I shall move this honorable Court, at the nei term thereof, to be holden at the Capitol in the city of Al - bany, on the third Monday in October next,” &c. The notice was dated the 28th of January, 1825, and served in season for-this term.

A. Conkling, contra,

objected, that from the terms of the -notice, the time for making the motion would not arrive till October term next.

It is impossible that the plaintiff ’s attorney could have been misled by this notice. It is first general for the next term after its date and service. The words, “ on the third Monday of October next,” must be rejected as surplusage.

Conkling thereupon stipulated.