New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co.

The questions are the same as those presented upon the former appeal, and though the plaintiffs position is apparently strengthened by the affidavit of Edge-comb, who upon the former application made an affidavit which cannot be entirely reconciled with the one now presented, the same reasons that are enumerated in the opinions upon the former appeal still exist for refusing to determine the questions upon affidavits, and for deferring them until a trial can be had. The facts now relied upon are the same as those formerly presented, the difference consisting in additional evidence now offered in support of plaintiff’s view of knowledge on the part of the defendant. No suggestion as to the irresponsibility of the defendant is made. We think, if the same diligence had been exercised, in endeavoring to bring the case to trial as has been shown for the purpose of obtaining an adjudication which would determine the merits of the controversy upon affidavits, the rights of the parties should ere this have been adjudged. Our conclusion is that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Present —Van Brunt, P. J., O’Brien and Parker, JJ.