The defendant made a motion for leave to serve a proposed amended answer, which was- argued and denied; and although the defendant served upon plaintiff’s attorney a demand "for notice of settlement, the latter entered an order denying the motion, no notice of settlement having been given. It is alleged by defendant, and conceded by plaintiffs attorney, that upon the motion one of the papers used by plaintiff had not been, included in the recitals, and attention having been called to such omission the plaintiff’^ attorney, while admitting the fact that the omitted paper had been used and handed up by him on the motion, refused to resettle the order. Thereupon the defendant moved for a resettlement thereof, which application was denied, and it is from the order denying such resets tlement that, this appeal is taken. ..... .....
*270Rule 3 requires that all papers used or read on a motion on either side must be specified in the order. It being conceded that the Omittéd paper was presented to the court by the plaintiff in opposition to the motion, no good reason is assigned why it should not be recited. The plaintiff, while admitting the.use, now insists that, as it was an unnecessary and superfluous paper, its-omission from the recitals was proper. We think where, as here, the paper was used by the plaintiff’s attorney and was then deemed by him necessary, that after his success in defeating defendant’s motion it does not lie with him to say that a paper so used was unnecessary and superfluous.
From the memorandum made by the learned justice at Special Term it is evident that he acted under a misapprehension of the facts, and with ho intention of denying the defendant any of the fights to- which he was entitled. The memorandum states that the application to resettle the order was denied because the petition of the defendant and the deposition of Randall formed no part of the motion papers upon which said order was made. But it is conceded that both were used, and one of'them, the petition, is recited in the order as having been used. Another reason assigned for denying the resettlement was that the paper omitted was not specified in the notice of motion. In this statement the judge overlooks the fact that the paper was not used by the defendant, who was the moving party, but by the plaintiff in opposition, and, therefore, could not have, been anticipated, nor was the defendant required to specify, it in his notice of motion-.
The plaintiff, however, insists that the paper omitted, which was the deposition of Randall, was introduced only for certain purposes. This is no reason why it should not be recited, because if introduced its use could not be.restricted for the benefit of the one introducing it, aiid ignoring entirely the advantage which might he gained therefrom by the other party. The other objection, that its recital would involve its being printed upon appeal, and being voluminous, that it would be. expensive, is equally without- weight, because such expense would have to' be borne by the defendant who seeks to have it recited, and as to the printing, under rule 34 of the General Rules of Practice, the parties themselves may, or the judge could, upon notice, settle a statement respecting the same, or the parts thereof *271to be printed upon the appeal from the order, to be used in the place of the original, and thus limit the printing and the expense. If plaintiff’s attorney had acceded to the demand for notice of settlement of the original order, the motion for resettlement and the misapprehension as to the facts by the learned judge at Special Term, as well as this appeal, could have been prevented.
Where there is any dispute upon the question as to what papers were used, the declaration of the justice hearing the motion is conclusive. -But where it appears that the justice was under a misapprehension, and that the paper was used by .the plaintiff in opposing the defendant’s motion, the latter under the rules is entitled to have that fact recited in the order.
We think the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Present — Van Brunt, P. J., Williams, Patterson, O’Brien and Ingraham, J J.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.