Appellate Term.

to pleadings interposed on behalf of a domestic corporation. We cannot yield our assent to this contention. A reading of the entire section of the Code in question seems to warrant the conclusion that subdivision 3 applies to all parties, whether domestic corporations or not; and where, as in the case before us, it appears by the attorney's verification that all the officers are absent from the county where the attorney resides, the verification should be held to be a proper one. High Rock Knitting Co. v. Bronner, 18 Misc. Rep. 627; 77 St. Rep. 725; 43 Supp. 725,

VERIFICATION BY ATTORNEY OF PLEADING OF CORPORATION,-continued.

the county, instead of stating that it has not an officer or director then actually therein.

People v. Cheetham, 45 Hun, 6; 20 Abb. N. C. 44; 9 St. Rep. 580; 26 Week. Dig. 529.

Section 526 Code Civil Procedure is applicable to a verification by an attorney of the pleading of a domestic corporation, and the same must contain a statement of the grounds of his belief as to all matters not stated upon his knowledge.

High Rock Knitting Co. v. Bronner, 18 Misc. 627; 77 St. Rep. 725; 43 Supp. 725.

But a statement in the verification of a complaint based solely on information and belief that "deponent's knowledge is derived from information received from the letters of the plaintiff—and also from the admissions of defendant that he was owing the full amount as claimed in the complaint," is sufficient.

Id.

c. When party a foreign corporation.

Where the complaint in an action brought by a foreign corporation upon a contract for the recovery of money only alleges that the plaintiff is a foreign corporation, the verification by its attorney is sufficient, which, after proceeding in the regular form, states that he "has the contact" and gives as a reason why the verification is not made by the plaintiff, "because it does not reside in the county of Columbia, and is a corporation."

Clark's Cove Fertilizer Co. v. Stever, 29 Misc. 571; 96 St. Rep. 249; 62 Supp. 249.

Where an attorney verifies a pleading of a foreign corporation he must set forth the grounds of his belief as to all matters not stated on his own knowledge, but he need not state the reason why it is not made by the party, as the latter would be without meaning in the case of a corporation which cannot take an oath.

Robinson v. Ecuador Development Co., 99 St. Rep. 427; 65 Supp. 427.

Silo v. Linde.

affirmed in 29 App. Div. 627; 86 St. Rep. 1143; 52 Supp. 1143; Syracuse Moulding Co. v. Squires (Co. Ct.) 39 St. Rep. 824; 19 Civ. Pro. 241; 13 Supp. 547. In the cases cited by the appellants the precise point under consideration was not involved. Defendants' claim, therefore, that the court was without jurisdiction to render judgment on the verified complaint, is not well taken; and, as the other points raised are without merit, the judgment appealed from should be affirmed, with costs.

Judgment affirmed, with costs. All concur.

SILO v. LINDE.

[31 Misc. 264; 98 St. Rep. 55; 64 Supp. 55.]

(Supreme Court, Appellate Term. April 16, 1900.)

MOTIONS--ORDERS-RESETTLEMENT-AFFIDAVITS.

Defendant was not entitled to the resettlement of an order on the ground that it failed to recite his submission of an affidavit, where it appeared

NOTE.-RECITAL IN ORDER OF PAPERS USED ON MOTION.

Rule 3 of General Rules of Practice provides as follows:

"When any order is entered, all the papers, used or read on the motion on either side, shall be specified in the order, and shall be filed with the clerk, unless already on file or otherwise ordered by the court, or the order may be set aside as irregular, with costs. . .

A motion fo a re-settlement is the proper practice, if an order does not contain the proper recitals.

Mooney v. Ryerson, 8 Civ. Pro. 435.

If the motion is denied, the party feeling aggrieved should appeal. A second motion for a re-settlement cannot be made without leave.

Deutermann v. Pollock, 36 App. Div. 522; 89 St. Rep. 829; 55 Supp. 829. When there is any dispute upon the question as to what papers were used, the declaration of the justice hearing the motion is conclusive.

Farmers' Nat. Bank of Annapolis v. Underwood, 12 App. Div. 269; 76 St Rep. 500; 42 Supp. 500.

Shipherd v. Cohu, 23 St. Rep. 599; 4 Supp. 393; 56 Super. 525.

Smith v. Grant, 80 Hun, 118; 11 Civ. Pro. 354.

that he had failed to state to the court, on the oral argument of plaintiff's motion therefor, that he intended to submit an opposing affidavit, and plaintiff did not then know that the affidavit had been submitted, since defendant was required to advise plaintiff and the court of such affidavit on the oral argument, if he desired it to be considered on the motion.

Appeal from city court of New York, general term.

Action by James P. Silo against Herman Linde. From an order of the New York city court affirming an order of the special term denying defendant's motion for the resettlement of an order, he appeals. Affirmed.

The opinion delivered in the court below was as follows:

O'DWYER, J. On the hearing of the motion for a resettlement of the order as entered, and after having his attention di

RECITAL IN ORDER OF PAPERS USED ON MOTION -continued.

A party is not only entitled to have his affidavit in opposition to a motion recited in the order but it is error to incorporate in the order a direction that such affidavit should not be filed, in the absence of any libels or scandalous accusations therein wholly irrelevant to the cause.

Schecker v. Woolsey, 2 App. Div. 52; 72 St. Rep. 631; 37 Supp. 292.

A recital in the order that it was made on "all the papers and proceedings in the action" is too general to satisfy the rule.

Hobart v. Hobart, 85 N. Y. 637.

Faxon v. Mason, 87 Hun, 139; 67 St. Rep. 446; 33 Supp. 802.

In the case last cited the court said, "This language is so indefinite and uncertain that it is impossible for the court to determine what papers were before the court, and considered by it upon the hearing of the motion. It is necessary in order that there should not be confusion and dispute as to the papers used upon a motion, that they should be so definitely specified that they can be easily identified."

A paper used by a party who successfully opposed a motion cannot be omitted from the recitals of the order because he deems it unnecessary and superfluous, nor because not mentioned in the notice of motion, nor because used only for a particular purpose, nor because it is voluminous and would be expensive to print on appeal.

Farmers' Bank of Annapolis v. Underwood, 12 App. Div. 269; 76 St. Rep. 500; 42 Supp. 500.

rectly called to the alleged errors in the order as entered, the justice determined that the order as entered correctly stated the papers used upon the motion and the decision of the court thereon; and with that disposition by the justice presiding we are not disposed to interfere. Order appealed from affirmed, with $10 costs and disbursements. All concur.

Argued before BEEKMAN, P. J.,and GIEGERICH and O'GORMAN, JJ.

Herbert R. Limburger, for appellant.

Wales F. Severance, for respondent.

PER CURIAM. The plaintiff moved at the special term of the city court to strike out certain portions of the defendant's answer as scandalous and irrelevant. The motion was granted, and an order was made and entered accordingly. The attorneys for the defendant thereupon moved for a resettlement of the order, on the ground, among others which we are not re

RECITAL IN ORDER OF PAPERS USED ON MOTION,-continued.

An affidavit having been inadvertently omitted from the recitals of an order by the party who entered it and a sufficient excuse for the omission being shown, the party has an absolute right to have the correction made and it is error to impose conditions.

Thousand Island Park Ass'n v. Gridley, 25 App. Div. 499; 83 St. Rep. 722; 49 Supp. 722.

Papers previously served upon the adverse party, which are referred to in a notice of motion as part of the papers on which the motion is to be made, are entitled to be recited in the order as having been used upon the motion.

Deutermann v. Pollock, 36 App. Div. 522; 89 St. Rep. 829; 55 Supp. 829. Lapse of time since service of such papers, the loss thereof, or similar conditions, might require that the papers be served again before the moving party could thus use them by referring to them only but these considerations do not apply where the party has been recently served with the papers, and has them in possession.

Id.

Appellate Term.

quired to consider on this appeal, that it did not recite an affidavit which they claimed they had submitted. The motion was denied, and, the order made thereon having been affirmed by the general term of said court, the matter is now before us upon au appeal to this court.

The motion for a resettlement was based upon the affidavit of the counsel who contested the original motion, in which he states that "the said order fails to recite the submission of an affidavit of Herbert R. Limburger, verified the 6th day of October, 1899, which was submitted on behalf of the defendant on the said motion and filed herein." This is all that is stated by him upon the subject. An answering affidavit was read by the attorney for the plaintiff, in which he swears that upon the argument of the original motion the counsel for the defendant did not state to the court that he had in his possession any affidavit, or that he intended to submit any affidavit in opposition to the motion, and that he (the plaintiff's attorney) never knew that any affidavit had been submitted on the part of the defendant until after the decision. Numerous decisions have been cited by the learned counsel for the defendant upon which he relies in support of his appeal, the principal ones being Farmers' Nat. Bank v. Underwood, 12 App. Div. 269; 76 St. Rep. 500; 42 Supp. 500; Zimmer v. Metropolitan St. Railroad Co., 28 App. Div. 504; 85 St. Rep. 247; 51 Supp. 247; Deutermann v. Pollock, 36 App. Div. 522; 89 St. Rep. 829; 55 Supp. 829; New York Rubber Co. v. Rothery, 112 N. Y. 592; 20 N. E. 546. We have no doubt of the fact that both parties have the right to a recital in the order of all papers used or read upon a motion, and, if it appeared here without dispute that the affidavit in question had been used or read within the meaning of those words, we should have no hesitation in reversing the order appealed from. But accepting, as we should for the purposes of this appeal, the version of the matter given in the affidavit of the plaintiff's attorney, we do not think that the affidavit in question was so used or read. The motion was not submitted without argument upon papers furnished to the court by the