JOHNSTON against GREEN

JOHNSTON against GREEN. New York Common Pleas ; Special Term, December, 1867. Service of Order.—Inquest. An order placing a cause on the special calendar of short causes for trial, must he served on the adverse party, before the cause can be brought to trial under it. If service is omitted, an inquest taken under the order is irregular, and will be set aside on motion. Motion to set aside an inquest taken on a day assigned for the hearing of “ short causes.” The action was on a promissory note. The defendant Green answered, and made and filed an affidavit of merits to prevent an inquest. On the seventh day of December the plaintiff served on defendant’s attorney a notice of motion, for the eleventh, to place the cause on the special calender for the trial of short causes under the rules of the court. On this motion the defendant did not appear, and the plain- ' tiff took an order by default, placing the cause on the special calender for trial for the last Friday of the term. On that day the plaintiff took an inquest against the defendant Green, no one appearing on his behalf. Judgment was entered and execution issued to the sheriff of the city and.county of New York. No service of the order, placing the cause on the special calendar for short causes, was made. The defendant now applied to set aside the judgment and. execution on the ground of irregularity, J. C. Dimmick, for the motion. W. C. Horn, opposed. [MAJORITY — Van Vorst, J.] Van Vorst, J. It is the duty of an attorney obtaining an order in an action to serve a copy of it on the opposite attorney, in all cases where the rights of the other party may be affected or prejudiced by any proceedings taken under the order. Until the order has been served no active proceedings can be taken under it. An attorney conducting a cause has the right to manage it according to the general rules and practice of the court without reference to any order which may be obtained, interfering with his client, or the ordinary conduct of the cause, until a party obtaining an order against him serves a copy of it, so as to give him an opportunity to prepare to meet the exigencies of the order. This is especially true with regard to orders obtained by default. (Jackson v. Wilson, 9 Johns. R., 265; Jackson v. Johnson v. 7 Cai. R., 419; Burril's Practice, 338.) Motion granted; judgment and execution set aside.