Johnston v. Green , 3 Abb. Pr. 342 ( 1867 )

Van Vorst, J.

It is the duty of an attorney obtaining an order in an action to serve a copy of it on the opposite attorney, in all cases where the rights of the other party may be affected or prejudiced by any proceedings taken under the order. Until the order has been served no active proceedings can be taken under it.

An attorney conducting a cause has the right to manage it according to the general rules and practice of the court without reference to any order which may be obtained, interfering with his client, or the ordinary conduct of the cause, until a party obtaining an order against him serves a copy of it, so as to give him an opportunity to prepare to meet the exigencies of the order.

This is especially true with regard to orders obtained by default. (Jackson v. Wilson, 9 Johns. R., 265; Jackson v. Johnson v. 7 Cai. R., 419; Burril's Practice, 338.)

Motion granted; judgment and execution set aside.