Hyperlawhypertext legal database Brisban v. Hoyt 1 Wend. 27

← Cases

Brisban v. Hoyt

1 Wend. 27 Court N.Y. Sup. Ct. English

Delivered by Savage, C. J.

Contents

Majority

p. 27
Brisban ads. Hoyt.

Headnote

On a motion for a commission, the affidavit must state the party has a" defence on the merits.
Motion for a commission to examine witnesses. The affidavit on which the motion was founded did not state that the defendant had a good and substantial defence on the merits, as advised by counsel. It detailed the probable testimony of the witness, but not in a sufficiently explicit manner to enable the court to judge that it would amount to a good defence.
p. 28
Chandler, for defendant.
Brown, for plaintiff.

By the Court,

The motion is denied, with costs. Where the effect of a rule granting a commission is to stay the proceedings, the affidavit must state the party has a defence on the merits. ( 2 Johns. Cas. 285 .)

Cases cited