Fitzhugh v. Truax

1 Hill & Den. 644

• Court: New York Supreme Court
• Decided: August 15, 1841
• Status: Published

Opinion

By the Court, Cowen, J.

The affidavit of merits is insufficient. It is, that the defendant has stated the facts of his case ; whereas it should be, that he has stated the case, fee.

Motion denied.

(a)

See Rule 61st, ed. of 1837; and also Rule 1st of May T. 1840, (22 Wend. 644.) The affidavit may be, that the party has stated this case, or his case; but not that he has stated his defence, &c. (Brownell v. Marsh, 22 Wend. 636.) Nor will it do to qualify the phraseology, by adding) “ so far as the facts have come to his knowledge,” or in any other manner, unless a sufficient excuse therefor be ex pressly shown. (Brown v. Tousey, 19 Wend. 616.)