Wells against Hatch

Wells against Hatch. ALBANY, Feb. 1827. The plaintiff having made a case in this cause, upon which to move for a new trial, a motion was made in his 1 ^ behalf, to bring on the argument upon its order on the cal- * -»-> , € Ildar : But An affidavit of the defendant’s attorney was read on the J other side, stating that on the 28th day of February, when it was too late to notice the cause for argument, no copy of the case settled by the circuit judge had been served on him. And a motion was made in his behalf, grounded on this affidavit, (he having also served notice.of argument,) that a new trial be denied. And for him was cited Honay v. Chesterman, (5 Cowen, 22.) Contra, was cited, Delamater v. Smith, (16 John. 2.) Amotion for such rule as a party ⅛ entitled to, upon the ground that a “py°f the case is not served upon him, ao practice of the fjXu^noticed and brought on merated°n mo. tl0n‘ W. Hay, for the defendant. /. W. Paddock, for the plaintiff. [MAJORITY — Curia.] Curia. 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 enumerated 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.