Rome, Watertown & Ogdensburg Terminal Railroad v. City of Rochester

The application resulting in the order appealed from, was heard and determined upon the pleadings and certain proofs appearing in the printed papers on this appeal. All of the material allegations in the complaint are positive and direct, and are, made and verified as within the personal knowledge of the affiant, and if accepted as true, clearly present a case entitling the plaintiff to the relief sought on the motion. The allegations of the answer, as to all material matters, are made upon information and belief only.

The complaint and answer were properly treated as affidavits upon the hearing of the motion (Code, § 630), and had the effect of affidavits only. McEnrcoe v. Decker, 58 How., 250 .

It is therefore quite plain that the statements and allegations contained in the complaint treating the same as an affidavit were not controverted by the defendant. The answer read by the defendant in opposition to the motion was at most an affidavit by one of the defendants to the effect that he was informed and believed that the allegations in the complaint (affidavit) of the plaintiff were untrue, and that as to such defendant, he was informed and believed that certain other facts existed inconsistent with the statements of the plaintiff, the existence of which would negative such statements made by the plaintiff.

Such an affidavit proves nothing, and does not call upon or aid the court in determining any fact necessary to be determined in order to administer relief in any given case.

It is said in Mowry v. Sanborn ( 65 N. Y., 584 ): “It may, as a general rule, be safely affirmed that in the sense of the law, a general assertion of a fact in an affidavit upon information and belief proves nothing. A witness would not be allowed on the trial of a cause in any court to give evidence of a fact which he only knew from information derived from another, or which he simply believed to be true.”

This view renders it unnecessary to examine the other questions presented and elaborately argued on this appeal. It is, however, proper to observe that the threatened invasion of the claimed right of plaintiff is admitted by the defendant, by whom the right to destroy the property of the plaintiff is asserted, and it would appear that the magnitude of the interests involved in this contention would call upon the court by its order to protect the property of the plaintiff until the rights of the parties are settled by the judgment of the court, after the parties have had the opportunity of presenting all pertinent matters for consideration.

The order appealed from should be reversed and the motion granted.

Order reversed, with ten dollars costs and disbursements of this appeal and motion granted.

Smith, P. J., and Bradley, J., concur.