Savage v. Relyea

Decided August 8, 1848

New York Supreme Court · decided 1848-08-08

On motions made to a justice out of term, upon notice, under the 360th section of the code, the affidavits, &c., of the respective parties used on the motion, must be filed with the clerk of the county, where the venue is laid; or, in case the place of trial has been changed, in the county to which the other papers in the cause are transferred. • The order or decision made by the justice in such cases, must also be entered with the clerk of the same county where the papers are filed. It is the duty of the respective attorneys to file the papers used by them on such motion, and of the prevailing party, to see that the rule is entered conformably to the decision. Orders granted by a justice ex parte at chambers, under § 366, need not be entered with the clerk. Such order may be disregarded unless the affidavit, or a copy thereof, is served with a copy of the order. It seems there is no appeal to a general term from the decision of a judge, in granting or refusing an exporte order.

Good law ✅— No negative treatment on recordhow we know

Decided 1848-08-08

How this case has been cited

Cited by 4 later decisions — most recently July 1941

4 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1There are numerous orders made by a justice at chambers, in the progress of a cause, ex parte, which need not be entered with the clerk. Of this class, an order to enlarge the time to answer and the like, granted in pursuance of the 366th section of the code. By the same section it is required that the affidavit, or a copy thereof, be served, with a copy of the order, or that the order may be disregarded. There is no appeal to a general term from the decision of a judge, in granting or refusing an ex parte order (§ 300.) The remedy of the party aggrieved, in such cases, is under the 272d section. If the judge refuses to vacate or modify his order, on a motion founded upon notice to the adverse party, an appeal doubtless lies under the 300th section.