Main v. Pope — 16 How. Pr. 271

Majority

p. 271

SUPREME COURT.

Main and others agt. Pope.

Headnote

In granting an allowance under the Code in case of a reference, the cer tiftcate of the referee furnished to the court to show what has been done in the case, is proper for that purpose. But the court grants the allowance in such cases.

Where a motion for an allowance is made to a judge at chambers in the first district, on a notice of two days, and is opposed without objection as to the time of the notice, it cannot be again raised on a subsequent motion to set aside the order for irregularity.

In the first district, all motions except for new trials may be made at chambers, and this includes motions for an allowance, which are required by the Code to be made by the court.

Besides, an order made at chambers (in the first district) is always made during the term of the court, as a special term is always held during the hours of attending at chambers.

New - York Special Term,

July, 1858.

Motion to set aside an allowance for irregularity.

The judgment in this case was in defendant’s favor, and he applied for an allowance, which was granted. The motion was made on a notice of two days to a judge at chambers.

The plaintiff moves to set aside the allowance for irregularity.

1. Because the referee could not grant an allowance. This is so, and it was not in this case granted by the referee. His certificate was furnished to the court to show what had been done in the case, and was proper for that purpose.

2. That the notice should have been a notice of eight days. If such a notice was necessary, unless the time was shortened by the judge, the plaintiff should have made the objection on the day of making the motion. If he suffers a motion to be made on a short notice without objection, he cannot afterwards

p. 272

take advantage of it in another motion. He had two days’ notice of motion and should have then opposed it.

3. The Code provides that the allowance shall be made by the court, and so does the amendment of 1858. That is the general rule in all motions, but the Code also provides that in the first district all motions except for new trials, may be made at chambers. This includes motions for an allowance. Besides this, an order made at chambers is always made during the term of the court, as a special term is always held during the hours of attending at chambers.

The allowance is small and appears to be proper, and there is nothing in the reasons stated by the plaintiff’s counsel to call for an order to vacate the order granting them.

Motion denied.