
    Same Term.
    
      Before the same Justice.
    
    Brower vs. Brooks and others.
    In all cases where the party against whom a motion is made would have a right, in answer thereto, to explain by affidavit the matters which constitute the foundation of the motion, he should be apprized, by the notice of the motion, or by the papers upon which the motion is to be founded, of the grounds upon which the moving party relies to sustain his motion.
    In E&uity. The plaintiff moved to take from the files of the court, the plea of the defendant Brooks, on the ground that it was not duly verified by the defendant’s oath.
    
      
      A. M. Burt, for the plaintiff.
    
      B. S. Brooks, for the defendant Brooks.
   Harris, J.

The plea having been filed without being sworn to, is undoubtedly irregular. But I think the objection to the sufficiency of the notice of this motion is well taken. It is a salutary rule in all cases, where in answer to a motion, the opposite party would have a right to explain by affidavit the matters which constitute the foundation of the motion, that he should be apprized, by the notice of the motion, or by the papers upon which the motion is to be founded, of the grounds upon which the moving party relies to sustain his motion. (Hanna v. Curtis, 1 Barb. Ch. Rep. 263.) In this case there is nothing in the notice of motion, or in the papers themselves, from which the defendants can be informed as to the points upon which the plaintiff will insist in support of his motion. The notice is merely that a motion will be made to take the plea from the files of the court, and that it will be founded upon the bill and plea. I think this is not sufficient. The notice should have specified that the ground upon which the motion would be founded was that the plea had not been sworn to. It is possible that had the defendant been thus apprized of the ground of the motion, he might have been prepared to show that consent had been given to file the plea without oath, or in some other way to show that the plea had not been irregularly filed. For this reason the motion must be denied; but as the plaintiff is entitled to have the plea verified by the defendant’s oath, he may have liberty to renew the motion, unless within six days the defendant files and serves a new plea. Neither party is to have costs upon this motion.  