Southart v. Dwight — 4 N.Y. Super. Ct. 672

Majority

p. 672

Southart v. Dwight.

Headnote

Where a discovery is sought of a paper, stated on oath to have been delivered to the adverse party ; to excuse himself from discovering it, he must swear, positively, that it is not in his possession or under his control; or must state facts, which with his denial on his knowledge, information and belief, are equivalent to a positive negation on oath.

Dec. 1849.

This was an application by the plaintiff, for an order on the defendant, to discover a certain receipt. The affidavit of the plaintiff, made in support of the application, averred positively, that he had made and signed the receipt in question, and had delivered it to the defendant. The application was opposed, and an affidavit of the defendant produced, in which he swore that he had no recollection of such a receipt, that he had. searched for it, but without finding it, and that he believed it was. lost or mislaid, and to the best of his knowledge and information, no such receipt was in his possession, or under his control.

held that the affidavit of the defendant did not make a sufficient answer to the application of the plaintiff. A party, to excuse himself from making a discovery of any papers alleged on oath by the adverse party, to be in his possession, must make an affidavit in the terms prescribed by the revised statutes, and swear positively that the papers are not in his possession, or under his control. He must make such an examination as to enable him to do this ; or state facts with his denial when expressed as it is here, which will show that such denial is equivalent to the positive oath required by the statute.