Smith v. Seattle, Lake Shore & Eastern Railway Co. — 47 N.Y. St. Rep. 283

Majority

p. 283

Charles Smith et al., Resp’ts, v. The Seattle, Lake Shore & Eastern Railway Co., App’lt.

(Supreme Court, General Term, First Department,

Filed June 29, 1892.)

Headnote

Motions and orders—Service of papers.

Where all the papers to be used on a motion are not served, and objection on that ground is made on the hearing, the motion should be denied. It is no answer to such objection that the party moved against should have asked that the papers be served. But the moving party, to avoid the objection, should ask leave to serve them on terms.

Appeal from an order granting plaintiffs’ motion for a discovery and inspection of a certain written report, and denying defendant’s motion to vacate an order to show cause, on which said order was founded.

Henry Stanton, for app’lt; Gilbert D. Lamb, for resp’ts.

—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 ten dollars costs and disbursements of the appeal.

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