Smith v. Seattle, L. S. & E. Ry. Co. — 19 N.Y.S. 742

Majority

p. 742

Smith et al. v. Seattle, L. S. & E. Ry. Co.

(Supreme Court, General Term, First Department.

June 29, 1892.)

Headnote

Practice—Motion—Failure to Serve Papers.

Where all the papers to be used on a motion are not served on the opposing attorney,, the motion should not be granted if objection is made at the hearing, and it is not a sufficient answer to the objection that the party moved against did not ask that the papers be served.

Appeal from special term, New York county.

Action by Charles Smith and others against the Seattle, Lake Shore & Eastern Bailway Company. From an order granting a motion for a discovery and inspection of its books, defendant appeals.

Beversed.

For former report, see 16 H. Y. Supp. 417.

Argued before Van Brunt, P. J., and O’Brien and Patterson, JJ.

Henry Stanton, for appellant. Carroll Sprigg and Gilbert D. Lamb, for respondents.

We think the papers served on this motion were fatally defective. The allegations of the petition were upon information and belief as to some of the matters material to the application, and on writings not annexed to the petition as served. If the rule requiring all papers to be served which are to be used upon a motion means anything, it should have been complied with in this case, and, the objection having been taken on the hearing, it should have prevailed. It is not a sufficient answer to say that the party moved against should have asked that the papers be served on it, but, rather, that the moving party should have asked for leave to serve them on such terms as to the court might seem fit. The objecting party was in no wise in default. Both parties placed themselves on their strict legal rights, and under such circumstances no reference could be made without such service, and without such reference the petition of the plaintiffs was not sufficiently supported.

The order is reversed, with $10 costs and disbursements of the appeal.