Wells v. Hatch

Delamater v. Smith, (16 John. 2,) lays down the rule of practice, when it is intended to move to strike the cause from the calendar, so as to prevent its being argued. Notice must, in such case, be given as for a non-enumerated motion. In Honay v. Chesterman, (5 Cowen, 22,) the motion was, that a new trial be denied, on the ground that the party making the Case had not served a copy in due season, and the opposite party had noticed it for argument. We granted the motion, on the cause being moved upon the calendar, without our attention being called to the inconvenience of thus mingling motions of an *610enumerated and non-enumerated character together; and the surprise which such a practice may many times produce to the party making the case. We think the practice should be uniform in these motions which relate to the calendar ; and that where a copy of the case is not served according to the practice of this court, the application to deny the motion sought by the case, or for such rule as the party is entitled to by the neglect, shall come on up on a regular notice, as for a non-enumerated motion.

Rule accordingly.