Cutler v. Biggs

2 Hill & Den. 409

• Court: New York Supreme Court
• Decided: April 15, 1842
• Status: Published

Opinion

By the Court,

Cowen, J.

The analogy was so striking between this and the cases mentioned" by Mr. Humphrey, that I reserved the point, in order to confer with the judges. Our recollection is, that affidavits of merits made in the course of the cause for one purpose, have uniformly been rejected when proposed to be used for another. For instance, an affidavit of merits, made with a view to change the venue, would not be received as the foundation of a motion to set aside a default for want of a plea. Many other like instances might be mentioned. To grant this motion would, therefore, be to work such an extensive and inconvenient innovation in practice as we do not feel warranted in allowing. I would grant the motion on terms, if an affidavit of' merits had now been made; but I find none among the papers handed up. Although two affidavits of merits have heretofore been made in this cause for other purposes, I can regard neither as sufficient, because neither was made with an immediate view to this motion.

The motion must be denied with costs; but, under the circumstances, without prejudice to the right of renewing it.

Ordered accordingly.