Hartwell v. Kingsley

2 Sandf. 674

Opinion

Sandford, J.

The plaintiff seeks to read Ms reply duly verified, and sundry affidavits recently made, in opposition to- the-motion to dissolve the injunction which is founded upon the answer only. It is true the answer must be sworn, in order to1 move upon it; but it is nevertheless the answer, and the application to dissolve, is not made upon affidavits on the part of the-defendant, within the meaning of section 226 of the amended) code. The previous section shows clearly, that the answer is a document entirely distinct from the affidavits, upon which with) or without the answer, the motion to dissolve the injunction may be made. The answer cannot be used at all in support of the motion, unless it be verified; so that when the code here speaks of an answer, it means a sworn answer. The plaintiff therefore, by the express terms of the 226th section; is precluded from opposing the motion by affidavits or proofs in addition to those on which the injunction was granted.

(a)

This point was so ruled by the whole court in March 1849, on an appeal froms an order at chambers, in the case of v. Barker. See to the same effect, ruled in the supreme court in this district by Hurlbut and Edwards, J. J., Servoss v. Stannard, 2 Code Reporter, 56.