Franklin v. United Insurance

2 Johns. Cas. 285

• Court: New York Supreme Court
• Decided: April 15, 1801
• Status: Published

Opinion

*Per Curiam.

Though the defendants account for their delay, in making this application, yet they do not state with certainty that there is a substantial defence ; or that they are informed, and believe any to exist. Where a party asks for delay, he ought to state positively that he has a defence on the merits ; and that he seeks only the requisite proof. The defendants ask for a commission, for the double purpose of ascertaining or discovering whether a defence really exists, and if it does, to obtain the requisite proof to support it. The affidavit does not state probable grounds to induce a belief that the vessel could have continued her voyage. The commission appears to be intended for general inquiry, to fish for facts. If it should be granted, it would become a precedent that would lead to abuse.

The motion must be denied ; but the defendants will be at liberty to take out a commission, if they choose, without any stay of proceedings in the case.

Buie refused.(

a)

(a) See Graham’s Practice, 2d ed. 592, 593. See note (5) to Franklin v. The United Insurance Company, supra, p. 68.