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In re Haggerty's Will

133 N.Y.S. 345 Court N.Y. App. Div. Decision date 1912-01-26 English

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p. 345
In re HAGGERTY’S WILL.
(Supreme Court, Appellate Division, Second Department.
January 26, 1912.)

Headnote

Appeal and Error (§ 799[1] )—Motion to Dismiss Appeal—Opposing Affidavits—Sufficiency.
On motion to dismiss an appeal for want of prosecution or other neglect, a party contesting the motion, in addition to affidavits stating facts excusing the delay, must also submit affidavits stating concisely the facts out of which the controversy arose, the questions of law and fact involved, and showing that the appeal is meritorious, under the express provisions of the Supreme Court rule adopted October 4, 1910.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3158-3160; Dee. Dig. § 799.*]
In the matter of the probate of the last will and testament of Ellen Haggerty. On motion to dismiss appeal. Motion held for further •proceedings.
Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ.
Charles A.. Webber, for the motion.
Edward T. Curran, opposed.

This is a motion by the respondent to dismiss the appeal for lack of prosecution thereof. The affidavits in opposition are silent with respect to the special rule adopted by this court on October 4, 1910. Inasmuch as there are frequent violations thereof, we think it advisable to call the attention of the bar in this formal way to the rule, which is as follows:

“When a motion is made to dismiss an appeal for want of prosecution or other neglect, the party desiring to oppose such a motion, in addition to affi-" davits stating facts excusing the delay, must also submit affidavits stating concisely the facts out of which the controversy arose and the questions of law and fact involved in the said appeal, and showing that the appeal is a meritorious one.”

This motion will be held for five days, so as to afford opportunity to the appellant to submit such further papers as may be deemed advisable. But the action of the court in this instance is not to be regarded as a precedent. All concur.