Fitchett v. American Bill-Posting Co.

Appellate Division of the Supreme Court of New York

Fitchett v. American Bill-Posting Co.

51 N.Y.S. 556

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 7, 1898

StatusPublished

This text of 51 N.Y.S. 556 (Fitchett v. American Bill-Posting Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitchett v. American Bill-Posting Co., 51 N.Y.S. 556 (N.Y. Ct. App. 1898).

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Opinion

PER CURIAM.

The plaintiff’s petition was insufficient to authorize the granting of the order appealed from. It did not show that any right or interest of the plaintiff had been affected, injuriously or otherwise, by the acts of the defendants of which she complained. As not infrequently happens, however, the defects in the moving papers were supplied by the answering affidavits. These indicated that the plaintiff was asserting a cause of action based upon an injury to the estate of her intestate, who had been a stockholder in the appellant corporation, and, taken together with the petition, they afforded an adequate foundation for the order of inspection. If it appeared that the examination would impose great or unnecessary hardship upon the appellant, as asserted in its behalf, that fact would be a strong argument in favor of a reversal of the order. Ward v. Insurance Co., 78 Hun, 363, 29 N. E. 186. But the statements to show that such is the case are set forth only in the brief of counsel, and are not substantiated by affidavit. Under these circumstances they must be disregarded.

Order affirmed, with $10 costs and disbursements.

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PER CURIAM.

The plaintiff’s petition was insufficient to authorize the granting of the order appealed from. It did not show that any right or interest of the plaintiff had been affected, injuriously or otherwise, by the acts of the defendants of which she complained. As not infrequently happens, however, the defects in the moving papers were supplied by the answering affidavits. These indicated that the plaintiff was asserting a cause of action based upon an injury to the estate of her intestate, who had been a stockholder in the appellant corporation, and, taken together with the petition, they afforded an adequate foundation for the order of inspection. If it appeared that the examination would impose great or unnecessary hardship upon the appellant, as asserted in its behalf, that fact would be a strong argument in favor of a reversal of the order. Ward v. Insurance Co., 78 Hun, 363, 29 N. E. 186. But the statements to show that such is the case are set forth only in the brief of counsel, and are not substantiated by affidavit. Under these circumstances they must be disregarded.

Order affirmed, with $10 costs and disbursements.

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Bluebook (online)

51 N.Y.S. 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitchett-v-american-bill-posting-co-nyappdiv-1898.

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