Garrett v. Wood — 48 N.Y.S. 1002

Majority

p. 1002

GARRETT v. WOOD.

(Supreme Court, Appellate Division, Third Department.

January 5, 1898.)

Headnote

Appeal—Objections not Made Below.

Where the record does not show that, at the time a motion was heard and an order made putting the case over the term, an objection was made thereto, on the ground that it was not based on affidavits, that objection cannot be urged on appeal.

Appeal from Albany county court.

Action by Lena Garrett against Bradford R. Wood. From an order putting the case over the term, plaintiff appeals.

Affirmed.

Argued before PARKER, P. J., and LANDON, HERRICK, MERWIN, and PUTNAM, JJ.

Barnwell Rhett Heyward, for appellant.

Countryman, Dubois & Bevans, for respondent.

The only papers in the record before us are the order appealed from and the notice of appeal. The order states that, the action coming on for trial in its regular order on the calendar, and the plaintiff having announced herself ready for trial, the defendant moved that the case be put over the term; and that, after hearing the counsel for the respective parties, the action was put over the term, without costs. The order does not state that any papers were used. Presumptively, none were used, but, instead thereof, the oral statements of counsel on either side. The point of the appellant seems to be that the order was improper, because not based on affidavits. It does not appear that any objection was made on this ground. Such motions are often heard on oral statements, and, if counsel do not object at the time, no error on that ground can be claimed. What the statements before the court were does not appear, and we therefore cannot say that the case was improperly put over. It is the business of the appellant to show error. That is not done here, and the order should be affirmed.

Order affirmed, with $10 costs and disbursements.