Donaldson v. Jackson — 9 Wend. 450

Majority

p. 450

Donaldson vs. Jackson.

ALBANY,

Nov. 1832.

Headnote

A party against whom a motion is made, objecting to its being granted on the ground of short notice, is notwithstanding entitle to costs for appearing to resist.

So also a party is entitled to like costs for appearing at a general term, and resisting a motion which should have been made at a special term.

The plaintiff objected preliminarily to a motion made by the defendant, that short notice had been given, and asked costs for appearing to oppose. It was said in opposition, that if the plaintiff insisted on his objection, he was not entitled to costs, because, knowing the notice to be defective, he was not bound to appear. But by The Court, he might think it prudent to appear, lest by inadvertence the defect in the notice might not be observed, and the motion pass against him ; and having appeared, he is entitled to costs.^[1]

* Such also is now the settled practice of the court in relation to non-enu. merated motions noticed for a general term, which, by the practice of the court, can be made only at a special term; the party against whom the motion is no. ticed has a right to appear and object that the motion cannot be heard at a general term, and is allowed costs for such appearance.