Majority
p. 9Herkimer County Bank vs. Devereux and others.
Headnote
An affidavit on which to move to strike a cause from the calendar pursuant to the 48th rule, must show that the party moving has served a notice of argument, unless such notice has been served by the adverse party; but it need not state that the cause is on the calendar, or that a note of issue has been sent to the clerk. If the cause appear upon the calendar when the motion is made, that will suffice.N. Hill, Jun., for the plaintiff,
moved on Friday of the second week of term, to strike this cause from the calendar, and that judgment be rendered for the plaintiffs. He read an affidavit showing that a joinder in demurrer to the declaration had been filed and served more than eight days before the commencement of the term, and the cause regularly noticed for argument by the plaintiffs’ attorney; hut that no copy of the demurrer book- had been served within the time prescribed by the 48th rule. (Rules Sup. Court of 1837.)
p. 10objected that the affidavit was insufficient, inasmuch as it did not show the cause to be upon the calendar', or that the plaintiffs’ attorney had sent a note of issue to the clerk.
M. T. Reynolds, contra,
When the party who is to furnish the papers has noticed the cause for argument without serving a copy of the papers in due time, the other party may move to strike the cause off the calendar without noticing it himself. But when the cause has not been noticed by the party who is to furnish the papers, the other party must show, in his affidavit for the motion, that he has noticed the cause for argument. When he states that fact, it is not necessary that he should add that the cause is on the calendar." It is enough that it appears upon the calendar at the time the motion is made.
Motion granted.[1]
(a) (a) See Rules Sup. Court of 1837, No. 48, in connection with 10 Wend. 537 , note.