Majority
p. 578ANDREAS H. GOURAUD, Appellant, v. PERCEY B. S. TRUST and others, Respondents.
Headnote
Where an order discontinuing an appeal is made on an exparte application, upon an affidavit which omits to state, as required by rule 25, that no other application for the same order has been made, such order will be vacated, if a motion therefor be made on that ground.Supreme Court rule XJo. 25 — order vacated for non-compliance with.
Appeal from an order made at a Special Term, granting a motion to vacate an ex parte order discontinuing an appeal, on the ground that the affidavit, on which said ex parte order was entered, did not comply with rule 25 of the General Rules of Practice, in that it omitted to state that no other application for the same order had been made. No other application had in fact been made, and it was claimed that the omission of that statement from the affidavit resulted solely from haste and inadvertence.
The appeal was taken in April, 1878, from a decree of the surrogate of New York county, admitting a will to probate ; the ex parte order, discontinuing said appeal, was entered February 14, 1879, and the order vacating said ex parte order was entered March 1, 1879. From the last-mentioned order this appeal is taken.
Francis Howland, for the appellant.
W. II. Waring, for the respondent, Martha B. T. Gouraud.
The order discontinuing this appeal was entered ex parte, upon an affidavit which omitted to state that no other application for the same order had been previously made by the appellant. For that reason this motion was made to vacate the order, and an order to that effect was accordingly made in the case. This last order was sanctioned by the plain terms of rule 25, and consequently it was regularly made.
p. 579
It should therefore be affirmed, with ten dollars costs and disbursements.
Brady, P. J., and Ingalls, J., concurred.
Order affirmed, with ten dollars costs and disbursements.