Leonard v. Manard — 1 N.Y. Super. Ct. 200

Majority

p. 200

John Leonard versus Ezekiel Manard.

Oct. Term, 1828.

Headnote

The affidavit of a party to a suit, made in the progress of the cause, for the purpose of resisting a proceeding on the part of his antagonist, cannot be excluded by counter affidavits, setting forth, that the party making the affidavit is an atheist. The competency of a witness’cannot be attacked in this collateral way, as he has no opportunity for explanation or reply. But where a party has been induced to make an application to the Court by the incorrect declarations of the opposite party, the Court, although they may refuse the application, will compel the party in fault to pay the costs of the application.

This was an application on the part of the defendant to compel the plaintiff to give security for costs, upon the ground, that he was a non-resident. The plaintiff, in reply,, put in an affidavit stating his residence to be in the city of New-York. The defendant then read affidavits to show that the plaintiff was an atheist, and had no belief in a superintending Providence, or a state of future rewards and punishments. Upon these affidavits, the defendant insisted, that the plaintiff was not competent to testify or make an affidavit, and that the case was therefore to be considered as if his affidavit were not in the question.

The competency of a witness to testify, or of a party to make an affidavit, cannot be attacked in this collateral way. He has no opportunity for reply or explanation. It may be, that the plaintiff can so explain his views upon the subject of his belief, as to bring himself within the rules of law, and his affidavit cannot be excluded in this manner, nor he himself be thus attacked. The motion must be denied.

The defendant then shewed, that he had been led to make the application by the plaintiff’s own declarations, he having asserted that his residence was in the kingdom of Spain, and not in New-York. The Court were still of opinion, that the motion must be denied, but decided that the plaintiff should pay the costs of the application, as he had, by his own declarations, induced the defendant to make it.

Motion denied, but the plaintiff to pay costs.

[F. B. Cutting, atty. for the plff.