Gallerstein v. Manhattan Railway Co.

27 Misc. 506, 58 N.Y.S. 374

Opinion

Freedman, P. J.

The motion -resulting in the order -appealed, from was based upon an affidavit of an attorney employed in the. office of the- attorney for the defendant, and upon the pleadings.. The only proof as to the alleged necessity of the order consisted in the affidavit referred to. That such an affidavit, even if made by the attorney of record, is wholly insufficient has been expressly determined in Dueber Watch Case Manf’g Co. v. Keystone Watch Case Co., 21 N. Y. Supp. 342. To the same effect are Mayer v. Mayer, 51 N. Y. Supp. 1079; Van Olinda v. Hall, 82 Hun, 357; Gridley v. Gridley, 7 Civ. Pro. 215.

The order should be reversed.

Leventbitt, J., concurs; MacLeae, J., taking no part.

Order reversed, "with costs to appellant.