Bailey v. Ryder , 1 Barb. 74 ( 1847 )

Morse, J.

The notice of motion is sufficient, under the statute, and the 59th rule; although the settlement is in fact merely incidental to the award of issues. The intention of the rule was that the whole matter should be disposed of on the motion for settlement of the issues. The award of issues being necessarily precedent to their settlement, no party can be misled by such a notice as this, under the rule. And as copies of the pleadings are to be presented to the court, by the party making the application, no harm can arise from the form of the notice; although the practice under the rule may be somewhat inartificial.

Motion granted.