Southack v. Central Trust Co. — 70 N.Y.S. 334

Majority

p. 334

(61 App. Div. 105.)

SOUTHACK v. CENTRAL TRUST CO. OF NEW YORK.

(Supreme Court, Appellate Division, First Department.

May 10, 1901.)

Headnote

Practice—Settling Order.

Under Sup. Ct. Rule 3, requiring all papers read or used on the motion to be specified in the order, an order is defective which recites certain papers, and then states, “upon all the pleadings and proceedings in this action.”

Appeal from trial term, New York county.

Action by Louis V. Southack against the Central Trust Company ■of New York individually and as substituted executor and trustee, ■etc. From an order refusing to resettle an order by striking out certain portions thereof, defendant appeals.

Reversed.

See 69 N. Y. Supp. 1146 .

Argued before. VAN BRUNT, P. J., and HATCH, McLAUGHLIN, PATTERSON, and INGRAHAM, JJ.

Clarence P. Moser, for appellant.

Franklin Nevius, for respondent.

The order in this case in the recital of the papers used upon the motion recites certain papers, and then states, "upon ■all the pleadings and proceedings in this action.” The motion was to resettle such order by striking out this recital. The motion ■should have been granted. Rule 3 of supreme court rules requires that all papers read or used upon the motion on either side shall be specified in the order. The recital-asked to be stricken out assumes that other papers were used, but ‘is so indefinite as not to show what they were. This is a violation of the rule, and in disregard of a decision of this court. Faxon v. Mason, 87 Hun, 139 , 33 N. Y. Supp. 802 .

The order should be reversed, with $10 costs and disbursements, -and the same remitted to the judge who made it, for resettlement.