Majority
p. 599Standard vs. Williams. ALBANY, Dec. 1833,
Headnote
Where a conclusive anweris given to a special motion made, the motion will be denied, and will not be continued over to a subsequent term to give the moving party an opportunity of replying ; if the answer be untrue or can be satisfactorily explained, the proper course is, on a new notice, to ask for a vacatur of the rule denying the motion.A motion for judgment as in case of nonsuit was resisted on the ground that at the last circuit, when the cause was noticed for trial, the parties settled the suit. The counsel for the defendant asked that the motion might be continued over until the next special term, to give the defendant the opportunity to explain or controvert the answer of the plaintiff to the motion now made.
p. 600
J. V. L. Pruyn, for the defendant,
TV. Darling, for the plaintiff
By the Court,
The affidavit of the plaintiff, alleging the suit to be settled, is a perfect answer to the motion* and it therefore must be denied. If the affidavit be untrue, or if the transaction upon which the allegation of the plaintiff be founded can be explained, so as to show that no settlement did in fact take place, the defendant may apply to the court upon a notice to vacate the rule denying his motion, but the motion now made cannot be continued over to another term.