Crippen v. Ingersoll , 10 Wend. 603 ( 1833 )

By the Court,

Nelson, J.

The portion of the rule giving costs of the motion to set aside the default was erroneously entered. The court do not examine into, and in the legal sense of the term, do not pass judgment upon the merits of a motion duly noticed and not opposed by the adverse party, for the reason that his silence is an acknowledgment that the party moving is entitled to all he asks for; but he is entitled to no more than he asks for in his notice, and if he takes more, he does so at his peril. Here the party took more than he was entitled to take, and the present motion must be granted, with costs.