Cruikshank v. Van Ness — 88 N.Y. Sup. Ct. 590

Majority

p. 590

In the Matter of the Estate of Benjamin Lord, Deceased. Augustus Cruikshank, as Trustee of the Estate of Benjamin Lord, Deceased, Respondent, v. Edward Van Ness and Another, Appellants, Impleaded with Gilbert M. Huested and Another.

Headnote

Practice motion — order to take testimony, to hear and determine — striking out, as untrue, relevant averments in affidavits.

The court upon a practice motion has no power to make an order of reference to hear and determine; the only order which it can make is to direct a referee named to take the testimony and report with his opinion.

A court has no authority to strike out from an affidavit relevant averments simply because they are claimed to be untrue.

Appeal by the defendants, Edward Yan Ness and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of May, J.894, confirming the report of a referee and directing that a certain allegation contained in an affidavit submitted in opposition to a motion to remove a trustee and to compel him to give additional security, be stricken out and expunged as false and scandalous, with notice of an intention to bring up for review on such appeal an order made at the New York Special Term and entered in said clerk’s office on the 5th day of December, 1892, appointing a referee to hear, determine and report whether a certain judgment was procured by the fraud and deceit of the defendant Woodruff.

E. O. Perlcins, for the appellants.

A. E. Woodruff\ for the respondent.

The court upon a practice motion has no power to make an order of reference to hear and determine. The only order which can be made is to direct a referee to take the testimony and report with his opinion.

Upon the merits we are of opinion that the court had no authority to strike out relevant averments simply because they are claimed to be untrue.

The order should be i-eversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.