¶1Denied the motion with $7 costs, on the ground that it appeared McCardle did not wish to defend the suit, or to have the motion *made, and defendant’s attorney must have known it. If defendant’s attorney had been served with the written notice of countermand, signed by McCardle, before making the motion, he should have ordered him (defendant’s attorney) to pay the costs of the motion.
2 How. Pr. 196
Derickson v. McCardle
Decided June 15, 1846
New York Supreme Court · decided 1846-06-15
<p>Where a motion was made by the defendant’s attorney to set aside default, judgment, &c., and it appeared that defendant’s attorney had received information before the motion was made, that the defendant did not wish to defend the suit, or to have the motion made; and had executed a writing directed to defendant’s attorney, to countermand the notice of motion, which writing (as appeared) was not served on defendant’s attorney, and he did not know of it until the motion was made; the motion was denied, with costs, and defendant’s attorney would have been ordered to pay the costs of opposing the motion, had the written notice been served upon him before making it.</p>
Decided 1846-06-15