
    CRANE ads. CONDIT.
    Matter of Practice.
    
      Mr. Frelinghuysen,
    moved to set aside the judgment and execution in this case, with leave for the defendant to plead. The motion was founded on the defendant’s affidavit of merits, surprise &c.
    
      E. Vanarsdale, contra.
    Opposed the motion and read counter-affidavits of the sheriff and clerk: and objected that the defendant’s affidavit was taken without notice to the plaintiff.— And cited 2 Archb. Pr. 11; Coxe R. 400; 5 Johns, R. 60; ib. 355; 3 ib. 268, referring to 3 Caines’ R. 97; 6 Wend, 517.
    
      Frelinghuysen,
    
    replied and referred to 3 Holst. 160.
   IIoRNBLOWER, C. J.

The exception to the affidavit is not -well taken. The rule requiring notice, applies to cases in which a rule to shew cause has been granted. Let the judgment be opened, but stand as security for t-he amount to be recovered.

Ford, J.

The defendant swears to an expectation of compromise and that the entry of the judgment is a surprise. The usual practice of the Court has been followed in this case. L< t the judgment be opened, and stand as security.

Ryerson, J.

As the defendant’s affidavit affects the rights of parties, I think it should be taken upon notice; and always so, unless on a motion for a rule to shew cause.

I doubt the propriety of granting the application.

Judgment opened, to stand as security for the sum which may be recovered.

Cited in, Van Wagenen v. Halsey, 1 Harr. 351: Cooper v. Galbraith, 4 Zab. 220.  