6 Sandford Super. Ct. Rep. 705

Barber v. Bennett.

If is no objection to a motion to strike out of a pleading irrelevant matter, that tbe moving party does not show affirmatively that be noticed bis motion within twenty days from the service of the pleading.

If the notice were not served in time, tbe adverse party desiring tbe benefit of ' that fact must show it in bis defence.

February 20, 1852.

Motion to strike out portions of the reply. The plaintiff made a preliminary objection, that it did not appear in the defendant’s affidavit that the motion was noticed within the twenty *706days prescribed by rule 43 of tbe supreme court. He cited tbe rule, and Bogers v. Bathbme, 6 How. Pr. Rep. 67.

B. Galbraith, for tbe defendant.

L. Gardenier, for the plaintiff.

Sandford, J.,

(with the concurrence of

Duer, Paine, and Bosworth, J. J.,)

held that it was not necessary for the moving party to show affirmatively that his motion was in time. If the notice is not given within the twenty days, the adverse party must show the fact in- the same way that he establishes any matter of defence not apparent in the moving papers.

Barber v. Bennett
6 Sandford Super. Ct. Rep. 705

Case Details

Barber v. Bennett
Decision Date
Feb 20, 1852

6 Sandford Super. Ct. Rep. 705

New York



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