Faxon v. Mason — 33 N.Y.S. 802

Majority

p. 802

FAXON v. MASON et al.

(Supreme Court, General Term, First Department.

May 17, 1895.)

Headnote

Settling Order—Recitals as to Papers Read.

Under Gen. Rule Prac. 3, which requires every order entered on a nonenumerated motion to specify all the papers used or read on the motion, an order is defective where it recites that it was made on the reading of certain papers, “and on all the papers and proceedings herein.”

Appeal from special term, New York county.

Action by Edith Mason Faxon against John Mason and another. From an order denying a motion to resettle an order by striking out certain portions thereof, defendant Mason appeals.

Reversed.

For former reports, see 21 N. Y. Supp. 737 , 27 N. Y. Supp. 1025 , and 28 N. Y. Supp. 1108 .

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

F. Bien, for appellant.

Howard A. Taylor," for respondent.

Upon settling the order upon the motion in question there was a recital of certain papers used upon such motion, together' with a statement in this general language, “and on all the papers and proceedings herein.” This language is so indefinite and uncertain that it is impossible for the court to determine what papers were before the court, and considered by it upon the hearing of the motion. It is necessary, in order that there should not be confusion and dispute as to the papers used upon a motion, that they should be so definitely specified that they can be easily identified, and that there may be no confusion or dispute in reference thereto. This is manifestly the requirement of rule 3 of the general rules of practice, which requires that, in every order -entered on a nonenumerated motion, all the papers used or read •on the motion on either side shall be specified in the order. The words objected to are too indefinite, and do not comply with the •rule. The order should be reversed, with $10 costs and disbursements.