Ripley v. Burgess — 2 Hill & Den. 360

Majority

p. 360

Ripley vs. Burgess.

Headnote

Where a defendant pleads and gives notice of the same matter of defence, the court will, on motion of the plaintiff, order either the plea or notice, at the option of the defendant, to be stricken out.

Papers purporting to be signed by the attorney of one party, and to have been served upon the other in the course of the cause, may be used by the counsel for the latter as the foundation of a special motion, though their genuineness be not verified by affidavit

Accordingly, in this case, no copy of the plea and notice in question having been served with the notice of motion, but the notice being that the motion would be founded on the pleadings in the cause; Add, that a paper purporting to be the copy of the plea and notice served by the defendant’s attorney, and to bear bis signature, might be used as such by the plaintiff’s counsel on the motion, without extrinsic proof of its identity.

p. 361

The court in many cases, (e. g. in respect to admissions of service, &c.,) take judicial notice of the signature of its attorneys.

Motion that defendant elect to abide by his plea or notice of special matter, which were identical, and that one of them be stricken out. No copy of the plea or notice was served on the defendant’s attorney in connection with the affidavit upon which this motion was founded, but the affidavit stated that a copy plea and notice of special matter had been served on the plaintiff’s attorney; and the notice of motion was, that the motion would be founded on the affidavit served, and the pleadings in the cause. On the motion coming on,

M. T. Reynolds, for the plaintiff,

produced what he alleged to be a copy of the plea and notice served on the plaintiff’s attorney, signed, as he said, by the defendant’s attorney; and insisted on using this copy as evidence to the court of the pleadings in the cause. To this,

A. Taber, contra,

objected, inasmuch as the paper was in no way verified.

By the Court,

The affidavit and notice of motion refer to the copy plea and notice served by the defendant’s attorney; but no copy is verified except by the production of an alleged copy now in the hands of the moving counsel. This may be false;. and I am not aware of any decision which would authorize the receipt of it as evidence to us, without an affidavit showing it to be a true copy. But we arc every day in the habit of doing as much in respect to admissions of service, which we judicially notice as genuine under the same circumstances. In the case before us, the copy purports to be signed by an officer of the court, and is produced by an officer. It is on this ground, I take it, that we receive admissions of service. In each case there is room for imposition; but our decisions on summary applications are not final; and on being felt, impositions may be at once corrected on motion. In

p. 362

case of admissions, too, the attorney by whom they purport to be made, is not supposed even to retain a copy or draft; whereas he always does retain one or the other of all pleadings which he sends out.

It is very desirable, as far as possible, to dispense with the service of papers not necessary for the adverse party in respect to motions which arise on pleadings or otherwise. Enumerated motions present another large class of cases in which copies are received' upon the official responsibility of attorneys and counsel. (Vide Jackson, ex dem, Wood, v. Harrow, 11 John. R. 434, 436.)

I think the paper in question may be received. The consequence is, that the motion must be granted to strike out the'plea with costs, unless .the defendant’s counsel shall elect to retain this. If the latter, let the notice be stricken out with, costs.

Ordered accordingly.