Majority
p. 603Crippen vs. Ingersoll. ALBANY, Dec. 1833.
Headnote
A party on a special motion is net entitled to costs, where the motion is granted without opposition, and costs are not asked for in the notice.At a previous term, the plaintiff obtained a rule setting aside a default entered by the defendant for the neglect of the plaintiff to declare, with costs to be paid by the defendant. The defendant now moved to vacate so much of the rule as gives costs, on the ground that the plaintiff in his notice had not ashed for costs, the notice being generally that the court would be moved to set aside the default and all subsequent proceedings for irregularity, and for such other relief as might be proper ;
p. 604
and the rule setting aside the default being obtained by default, no one appearing to oppose.
By the Court,
The portion of the rule giving costs of the motion to set aside the default was erroneously entered. The court do not examine into, and in the legal sense of the term, do not pass judgment upon the merits of a motion duly noticed and not opposed by the adverse party, for the reason that his silence is an acknowledgment that the party moving is entitled to all he asks for; but he is entitled to no more than he asks for in his notice, and if he takes more, he does so at his peril. Here the party took more than he was entitled to take, and the present motion must be granted, with costs.