Hallenback v. Whitaker — 17 Johns. 2

Majority

p. 8

Hallenback against Whitaker.

Headnote

An affidavit taken before a commissioner, an attorney of this court, and who was a partner in business with the attorney of the defendant, was allowed to be read, as he was not named on the record as an attorney in the cause.

T. SEDGWICK, for the defendant,

moved for judgment as in case of nonsuit, for not proceeding to trial, &c.

Townsend, contra,

objected that the affidavit, on which the motion was founded, was taken before an attorney of the court, as commissioner, who was a partner of the defendant’s attorney, in the practice of the law as attorneys. He cited Taylor v. Hatch, (12 Johns. Hep, 340.)

The commissioner, Mr. Matthews, before whom the affidavit was taken, does not appear as the attorney in this cause, as his name is not on the record. Though he may be a partner with the defendant’s attorney, in the profits of his business, as he is not the attorney on record, in this cause, we think the case does not come within that of Taylor v. Hatch. The objection cannot, therefore, be allowed.