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Saratoga Mutual Insurance v. Duram

3 Hill & Den. 451 Court N.Y. Sup. Ct. English

Delivered by Bronson, J.

Contents

Majority

p. 451
The Saratoga Mutual Insurance Company vs. Duram and others.

Headnote

An affidavit on which to f. n k c.ent, though it merely s n ' ing the issue to he one of/«i i . . 'on for judgment as in case of nonsuit is suEih;>t juc has been joined, without exraesslv show.
A. Taber, for the defendant,
on an affidavit that issue was joined on such a day, and that the plaintiffs had neglected to notice the cause for trial, &c. moved for judgment as in case of nonsuit.
p. 452
JV. Hill, Jr. for the plaintiffs,
objected, that the affidavit was not sufficient, because it did not state that an issue of fact had been joined j it may have been an issue in ¿aw, and nothing is to be taken by intendment on a motion for judgment as in case of nonsuit. He cited and commented on 2 R. S. 343, § 82 $ Brooks v. Hunt, ( 3 Caines’ Rep. 128 ;) Grah. Pr. 614,615,2d ed. But

said the affidavit was sufficient.

Motion granted.