Majority
p. 649(54 App. Div. 199.) RYAN v. DUFFY. (Supreme Court, Appellate Division, First Department. November 9, 1900.) Argued before VAN BRUNT, P. J., and HATCH, RUMSEY, McLaughlin, and ingraham, jj.
Headnote
Pleading—Motion to Serve Reply—Affidavit by Attorney—Sufficiency.An affidavit of an attorney presenting an excuse for delay in moving for leave to serve an amended reply is insufficient, as plaintiff himself ought to have been sworn.
Appeal from special term.
Action by Abraham H. Eyan, as administrator of the estate of Charles H. Ryan, deceased, against Ann Duffy. Prom an order denying his motion for leave to serve an amended reply, plaintiff appeals.
Affirmed.
A. S. Ridley, for appellant.
O. S. Truax, for respondent.
The plaintiff seeks to excuse his delay in making this application because he did not learn the facts until shortly before the motion was made. But this excuse appears only by the affi
p. 650
davit of his attorney. The plaintiff himself is not sworn. This defect is fatal, and for this reason the denial of the motion was correct; and the order must be affirmed, with $10 costs and disbursements, without prejudice, however, to the right of the' plaintiff, upon payment of the costs of the appeal and of the motion below, to renew upon proper papers.