Majority
p. 560Nichols vs. Nichols. ALBANY, Aug. 1833.
Headnote
Notice of inquiry must be given 14 days before the day of executing writ of inquiry.Where a party seeks to set aside the proceedings of his adversary for mere irregularity, he must apply at the first opportunity or he will not be heard.
The defendant moved to set aside" an inquisition taken before the sheriff on a writ of inquiry for the assessment of damages, on the ground of short notice. The notice was given on the ninth for the twenty-third day of April, and the defendant insisted that it should have been given fourteen days before the •day on which the writ was executed. 2 R. S. 410, § 7, 357, § 3.
The objection to the notice was held by Mr. Justice Sutherland to be well taken; but it appearing that the judgment was entered on 10th May, and two special terms having since elapsed, he refused to. grant the motion, saying that as this was an attempt to deprive the plaintiff of his judgment on the ground of mere irregularity, the defendant would be held to the strictest rules of proceeding; and having been guilty of laches in making his motion, he was not entitled to be heard.